King and Military Rehabilitation and Compensation Commission
[2008] AATA 374
•8 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 374
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1333
GENERAL ADMINISTRATIVE DIVISION ) Re GEOFFREY KING Applicant
And
MILITARY REHABILITATION & COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, MemberDate8 May 2008
PlaceSydney
Decision We affirm the decision under review that the respondent is not liable to pay compensation to the applicant in respect of any mental injury.
...................[Sgd]...................
Ms Robin Hunt
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – claim for mental injury – worker sustained physical injuries – liability for shoulder injury accepted – claimed psychiatric injury however diagnosed – conflicting diagnoses – diagnosis of depression and another diagnosis of alcohol abuse and cannabis abuse – consideration of cannabis use during service – consideration of alcohol consumption during service –finding psychiatric disorder did not arise out of or in course of employment – discharge on grounds of inappropriate conduct – finding of wilful misconduct – decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss 4, 4(13), 5A, 5B, 14, 14(2), 14(3), 16, 19, 124, 124(2)(c)
Compensation (Commonwealth Government Employees) Act 1971 ss 5, 27(1), 29, 54
Abrahams v Comcare (2006) 93 ALD 147
Canute v Comcare (2006) 226 CLR 535
Comcare v Etheridge (2006) 149 FCR 522
Comcare v Mather & Mitchell (1995) 56 FCR 456
Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Khan (2007) 156 FCR 536
Coward v Military Compensation and Rehabilitation Service (2006) 153 FCR 535
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Frosch v Comcare [2004] FCA 1642
Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473
Henderson v Commissioner of Railways (1937) 58 CLR 281
Kennedy v Telstra Corporation (1995) 61 FCR 160
Kirkpatrick v Commonwealth (1985) 9 FCR 36
McPherson and Repatriation Commission (1988) 8 AAR 229
Military Rehabilitation & Compensation Commission v Wall (2005) 88 ALD 1
QX07/1 and Military Rehabilitation & Compensation Commission (2007) 94 ALD 750
Repatriation Commission v Law (1980) 31 ALR 140
Roncevich v Repatriation Commission (2005) 222 CLR 115
Spriggins and Repatriation Commission (2007) 96 ALD 737
Wedderspoon v Minister of Pensions [1947] KB 562
Wiegand v Comcare Australia (2002) 72 ALD 795
REASONS FOR DECISION
8 May 2008 Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, Membersummary
1. Mr Geoffrey King, the applicant, enlisted in the Australian army as an apprentice mechanic when he was aged 16. During his time in the army, Mr King suffered a shoulder injury and complained of pain to other parts of his body which led to his being placed on other duties. Mr King claims that being placed on other duties meant he was ostracised by his fellow soldiers. He argues his treatment and ostracism in the army caused him a mental injury, which arose out of or in the course of his employment in the army, and for which the Commission is liable to compensate him. We have decided that, although Mr King suffers from a psychiatric disorder, Mr King suffered no mental injury that arose out of or in the course of his employment in the army and, therefore, the Commission is not liable to compensate him for his disorder. Our reasons appear below.
issue
2. The issue for our decision is whether the respondent is liable to compensate the applicant for his depressive illness, variously described as alcohol abuse and cannabis abuse and as major depressive disorder. The applicant claims an entitlement to compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for a mental injury arising out of or in the course of his employment in the Australian army, however diagnosed.
3. Relevant questions are: -
(a) On the balance of probabilities, did Mr King suffer from any mental injury or psychiatric disorder at the time of discharge in 1987?
(b) On the balance of probabilities, at the time of hearing, did Mr King suffer from any psychiatric disorders, and if so, what were they?
(c) Is Mr King’s psychiatric condition excluded from consideration for compensation under the SRC Act because:
i. Mr King was discharged from the army for wilful misconduct?
ii. Mr King did not make his claim in a timely manner pursuant to the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act)?
summary of findings
4. For reasons stated later in this decision, we find:
(a) Mr King’s claim is not excluded from consideration due to late lodgement of his claim in 2005 despite the claim concerning an alleged injury suffered in 1986.
(b) Mr King did not suffer a mental injury or psychiatric disorder at the time of discharge in 1987.
(c) Mr King now suffers a psychiatric disorder being major depressive disorder.
(d) Mr King is not entitled to be paid compensation for any mental injury or psychiatric disorder pursuant to the 1971 Act and to subsection 14(3) of the SRC Act.
(e) Mr King’s claim for compensation under the SRC Act also fails in that, pursuant to subsection 124(2) paragraph (c) of the SRC Act, entitlement to compensation exists under the SRC Act only where compensation is payable under the 1971 Act.
(f) The decision under review is affirmed.
lateness of claim
5. As a preliminary, we have considered if Mr King’s claim has been made too late in terms of the legislation in force at the time of the injury and under the current legislation. Section 124 of the SRC Act concerns the application of the Act to pre-existing injuries and reads, in part:
(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a) …;
(b) …; or
(c) in any other case--under the 1971 Act as in force when the injury, loss or damage was suffered.
6. We observe that there is a history of Mr King’s notification of some physical injuries during service although no claim for compensation was made at the time of the shoulder injury for which he claimed compensation in 2005 nor was there a claim or notification for the mental injury claimed in 2005. The respondent accepted liability for one “injury” as defined by section 5 of the 1971 Act. The accepted injury is one to Mr King’s shoulder. Although Mr King’s complaints about injuries to and pain in his knees, wrists and elbows are recorded, the respondent has not accepted liability for any injury to these parts of Mr King’s body.
7. According to the service material before us, Mr King did not attribute his alleged injuries or pain to any particular incident or incidents in relation to his knees, wrists and elbows. He claimed that the causes of his pain in those regions were cumulative. During the tribunal hearing, Mr King described an incident which he believed caused his arm pain and also blamed his army issue shoes for his knee pain.
8. Army doctors who examined Mr King many times during his service period in relation to limb pain or injuries did not attribute his pain to a particular incident or injury. Although Mr King’s superiors put him on lighter duties because of his complaints of pain, the army never accepted liability for any injury other than the shoulder injury and that was not until 9 June 2006, almost 20 years after Mr King’s discharge. After acceptance of liability for the injury of “posterior dislocation of the left shoulder and slight disruption of the left AC joint on Wednesday, 9 September 1987”, Mr King sought compensation for permanent impairment of his shoulder. This claim for compensation was unsuccessful on the basis that he had no permanent impairment as a result of the shoulder injury.
9. The respondent’s documents before us show that Mr King made the claim for his shoulder injury and a claim for depression by filling in and lodging one claim form. His solicitors wrote to the Military Compensation & Rehabilitation Service on 17 August 2005 forwarding a completed form of claim for rehabilitation and compensation dated 8 April 2005. Mr King detailed his injuries and wrote that these occurred to knees in 1982, to arms in 1984, depression in 1986 and left shoulder in 1987.
10. The service acknowledged the receipt of claims for depression and the left shoulder on 22 August 2005. A series of letters followed between the applicant’s solicitors and the service regarding the supply of further information, a reconsideration request and other matters. Finally, the claim for liability for the shoulder injury was accepted. The service rejected the claim for liability for depression in a separate determination and reconsideration decision. The final shoulder decision and the reviewable decision about the depression claim were made on 9 June 2006 and 10 September 2007 respectively.
11. In any event, the relevant legislative justification for processing the claim lies in section 124 of the SRC Act which contemplates claims for injury occurring on dates before the SRC Act came into force. The respondent’s letter to the applicant’s solicitor on 28 September 2006 correctly states that section 124 entitles a person to compensation for an injury suffered before the SRC Act’s commencing day. We therefore find that Mr King’s claim for depression is within time in the same way as his claim for shoulder injury was accepted and considered.
12. The respondent based its objection to the lateness of the claim on section 54 of the 1971 Act. Section 54 of the 1971 Act was amended on 1 July 1986. The original provision fixed a time limit of 6 months in which an application for compensation must be lodged. The new provision, which applied from 1 July 1986, to the repeal of the 1971 Act on 30 November 1988, contained no time limits for lodgement of claims.
13. Mr King claimed compensation for depression which dated from 1986, when he completed his claim form, and did not elaborate further about onset. If Mr King’s mental condition did amount to any “injury” in 1986, Mr King’s superiors, having referred him to two psychiatrists, one in 1986 and another in 1987, as indicated in the reports of military doctors and psychiatrists, may be evidence of notice of the injury within the meaning of section 53 of the 1971 Act. See Frosch v Comcare [2004] FCA 1642 (‘Frosch’). Section 53 provides, in part:
(1) This Act does not apply in relation to an injury caused to an employee unless notice in writing of the injury was served on the Commonwealth:
(a)as soon as practicable after the occurrence of the injury;
(b)if the employee was not, immediately after the injury, aware that he had sustained an injury - as soon as practicable after he became so aware; or
(c)if the employee died without having become so aware or before it was practicable to serve such a notice - as soon as practicable after his death.
14. Assuming Mr King did suffer depression in 1986 and it was sufficient to constitute an “injury”, pursuant to dicta in Frosch, any notice would seem to arise when the army saw fit to have Mr King examined by two psychiatrists. Both of these examinations took place after 1 July 1986 and neither found a diagnosable mental injury. Bearing this sequence in mind and also noting that the date at which Mr King claims he suffered depression, there is no suggestion of mental injury existing before 1 July 1986. This means the amended version of section 54 applies to the claim and no time limits apply. We therefore find that Mr King’s claim made in 2005 is not barred under the 1971 Act or the SRC Act.
15. It was not until the present review that the respondent suggested the depression claim may have been made out of time. In our opinion, the respondent’s having acknowledged the claim and processed it through the usual system of determination, reconsideration and decision without objection to the delay, prevents rejection on this basis as well.
mr king’s psychiatric condition
16. We have next considered Mr King’s current mental state and whether he has a psychiatric disorder. A number of medical reports and opinions are before us. The medical consensus is that Mr King does have a psychiatric disorder although diagnoses vary. Dr Klaas Akkerman, psychiatrist, who saw Mr King at the request of his solicitors, on 22 February 2007, diagnosed alcohol abuse and marijuana abuse. Dr Inglis Howe Synnott, consultant psychiatrist, who saw Mr King for the respondent, on 21 May 2007, diagnosed major depressive disorder. Dr Akkerman furnished a report dated 22 February 2007 and gave oral evidence at the tribunal hearing. Dr Synnott furnished a report dated 28 May 2007 and also gave oral evidence.
17. In view of these medical opinions, we are satisfied that Mr King does suffer a psychiatric disorder. While the diagnosis is not agreed, the main question for our attention is whether Mr King has a disorder which amounts to an injury so linked to his service that the respondent is liable to him for compensation.
18. It was put to us that Canute v Comcare (2006) 226 CLR 535 (‘Canute’) is authority for the proposition that no definitive diagnosis is required. We do not agree with this proposition but note the observations of the court that liability is for the injury claimed and that the definition of injury involves the effect of an incident or ailment on the body. Their Honours, Gummow ACJ, Kirby, Callinan, Heydon and Crennan JJ, in Canute at 540, as to liability for an injury, discussed it in the following terms:
First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of "the injury". Secondly, the term "injury" is not used in the Act in the sense of "workplace accident". The definition of "injury" is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term "injury" is not used in a global sense to describe the general condition of the employee following an incident.
19. We further note that the case of Abrahams v Comcare (2006) 93 ALD 147 says it is open to an applicant to change the diagnosis or to proceed with a claim for liability and compensation despite arguing that what is wrong with the applicant is something otherwise than described when compensation was first claimed. What is essential is to demonstrate an injury. While we have formed an opinion on balance about Mr King’s current diagnosis, we have proceeded to consider the claim in the context of the diagnoses of cannabis abuse and alcohol abuse as well as of major depressive disorder.
20. Briefly, we note here that Dr Synnott took into account Mr King’s long history of alcohol abuse going back to 1986 or earlier. Nevertheless, Dr Synnott explained in oral evidence that such a history was not necessarily connected to the present depressive illness. We also note that the medical records before us do not indicate an unbroken history of alcohol abuse. There are references to depression in the clinical notes of Dr A J Love. Dr Love, who was the applicant’s GP from 2000 to 2003, referred Mr King to a psychologist, Ms Renae Taylor, in 2002. Ms Taylor treated Mr King for depression. Dr James Greenwood, in 1996, treated Mr King for depression and Dr Schureck saw him about his depression in 1999, after a suicide attempt. Dr Stephan Pluschke, who was Mr King’s GP after 2003, made reference in his clinical notes to Mr King’s alcohol intake in one entry but made no notes about treatment for alcohol abuse.
21. It is our finding of fact, on balance, that Mr King currently suffers major depressive disorder. In so finding, we rely upon the clinical opinions contained within the reports of Dr Greenwood and Dr Synnott as well as the clinical reasoning set out in the report prepared by Dr Synnott. We prefer the opinion of Dr Synnott to that of Dr Akkerman for reasons we have set out in more detail below when considering the time of clinical onset of the disorder.
consideration of the evidence as to service link and findings
22. There remains the further question of when major depressive disorder had its clinical onset, and whether it arose out of or in the course of Mr King’s period of service. In order to determine whether Mr King suffered an injury entitling him to compensation in accordance with the SRC Act, we have asked ourselves whether he suffered a psychiatric disorder during army service.
23. Secondly, we have considered whether Mr King suffered a mental injury as a result of his treatment by the army and/or ostracism by his peers, resulting in a mental injury arising out of or in the course of his employment. This question depends in part on the date of clinical onset of Mr King’s condition.
Mr King’s Background
24. Mr King was born on 8 March 1964 and enlisted in the Australian army on 14 March 1980 at age 16. At the time of enlistment, Mr King says he had no experience of alcohol or cannabis. At this time, he says he also had no history of any problems with his knees or elbows. As well, Mr King says he had no history of depression and/or anxiety. Mr King said he joined the army as an apprentice mechanic and completed his apprenticeship at the end of 1983.
25. Mr King contends that the mental condition from which he suffers is a mental injury within the meaning the 1971 Act and it is therefore sufficient that the injury occurred during the course of employment without the need to demonstrate any causal link to the employment. In the alternative, he contends that a causal link existed between the employment and the injury. The causal link he argues arises from his motivation to engage in alcohol and cannabis abuse as forms of escapism from the pain of physical injuries and the ostracism of his peers.
26. Mr King gave evidence that he was mocked because of his olive skin and the size of his nose and his name, “Kinghorne” and that put more pressure on him to try to fit in. He had since changed his name to “King”.
27. When, on 9 June 2006, a delegate of the Commission accepted liability for “posterior dislocation of the left shoulder and slight disruption of the left AC joint on Wednesday, 9 September 1987”, the letter informing Mr King of this determination pointed out that, if he wished to be considered for future benefits, he would need to provide medical evidence linking the current condition to service. No sufficient evidence was found in support of his compensation claim when he was refused compensation in September 2006.
28. As to his claim that he suffered various other injuries in the army, Mr King said that injuries to his knees, elbows and wrists were cumulative. Army records show that, on 3 February 1987, a delegate of the Commissioner for Employee’s Compensation requested referral to a specialist of Mr King’s claims for compensation regarding his knees and elbows. The delegate also forwarded a list of questions to which he requested answers, including some directed to diagnosis and causation.
29. According to an army note made on 17 January 1987, Mr King was examined by several doctors between 4 April 1986 and 1 December 1986. D Simmons, Medical Officer, detailed some of these as:
A.Orthopaedic Review – Dr Stephenson 04 Apr 86
B.RAP 2/3 FER- (E) – Dr Williams 28 May 86
C.Rheumatologist Review 17 Jun 86
D.Orthopaedic Review 17 Jun 86
E.RAP DSU Liverpool 23 Jun 86
F.Rheumatologist Review 07 Jul 86
G.RAP DSU Liverpool 17 Jul 86
H.Physician Review – Dr Wingfield 29 Aug 86
I.Physician Review – Dr Hooper 15 Sep 86
J.Psychiatrist Review – Dr Williams 01 Oct 86
K.RAP DSU Liverpool 19 Nov 86
L.Summary – Colin J. Andrews 01 Dec 86
30. Among the reports and opinions provided as a result of medical investigations, the records show that Dr Ross Jeremy found, on 10 June 1987:
Knees – I would conclude that there is no proven evidence of any disease and this includes arthritis. Likewise, there is no history of injury.
Elbows – There is no apparent organic cause for this. It could perhaps be explained by an inherent inability to perform such activities.
31. Dr Jeremy took a history including details of Mr King’s changed duties. He recorded that in early 1986, he was transferred form normal mechanic’s duties to general duties for six months and then light duties. At no time was there elbow swelling but recorded that symptoms were worse in winter and that Mr King avoided doing push-up exercises after about 20 efforts. His current duties Dr Jeremy recorded as “clerical”.
32. Mr King also claimed that he had been medically downgraded and that this was the reason for his being placed on special duties, which he said caused ostracism. We note that on 3 April 1986 Mr King made a written statement in connection with his application for discharge in which he said he had recently been downgraded to a medical classification of “BE” and that his medical condition did not permit him to be employed in his trade of motor mechanic. However, Major G W O’Neill on 14 April 1986 noted that Mr King had not been classified as below medical standard for his trade and “may be placed in useful employment … in trade related activities”.
33. Mr King gave further evidence to the effect that three main factors caused his psychiatric problems and they all arose out of his period of service. These factors were the culture of the army, the response to physical pain from army-related injuries and the psychological impact on him of the ostracism of his peers in the army. However, we have no confirmation from any other source that Mr King was required to carry out degrading duties although Mr King’s unpopularity and ostracism is noted in an army assessment. Mr King said his drinking and cannabis habits arose because of this treatment and continued after he left the army. Nevertheless, he managed to work in various jobs from 1987 through to 1996, including at Sydney Buses. He stopped working in 2002.
34. Army records show that during his service he was the subject of disciplinary proceedings. He was accused and charged as follows:
·In October 1981, Mr King was charged with making a bomb with another apprentice, which injured a third apprentice. A superior officer wrote to Mr King’s parents warning that he would be discharged if he was guilty of another offence.
·On 27 May 1987, he was warned for being a disruptive influence on younger soldiers, showing a lack of initiative and regard for safe working practices and because his work required continual supervision.
·In July 1987, he was charged with having used cannabis on 23 May 1987.
further army records about mr king’s complaints
35. During the course of his service, Mr King claims he developed a painful condition in his knees and elbows. Several medical attendance forms completed by army doctors in February and March 1982 show Mr King complained of sore knees. A report dated 23 March 1982 shows he was feeling better after treatment with brufen and physiotherapy. His knees were reportedly “quite good” on 15 June 1982 and the doctor who made this report wrote “no need to review”. Mr King complained again of sore knees “over the last 12 months” on 20 October 1982. The doctor on this occasion observed no swelling and prescribed metsal and sol aspirin. On 15 March 1983, Mr King sought and obtained permission to play civilian sport, according to further army records. There are many further medical examinations recorded which are related to various conditions including dental surgery. An entry on 16 May 1983 is about a knee problem after Mr King played football.
36. On 9 October 1981, the army records show it served on Mr King an administrative warning that he was regarded as unsatisfactory in performance of his duties. Captain J N McDonald on 19 October 1981 wrote to Mr King’s parents about his being involved in a serious incident and saying he would be discharged if another serious incident occurred in the next six months.
37. Another record shows that Mr King’s application to live out of the base was approved on 30 June 1983. He had written that he needed more space to undertake hobbies and studies. A certificate dated 9 December 1983 shows Mr King completed his apprenticeship on 9 December 1983.
38. The applicant served notice of injury on the army on 15 April 1986. Mr King told us at the tribunal hearing that no particular traumatic incident occurred. In the completed report of injury form, Mr King wrote that the injury was a cumulative one. He said he suffered pain in the knees for some time and had an operation in 1985. He thought pain in his elbows was also cumulative and was related to his duties as a mechanic. He did not mention his wrists in this report. After medical investigations and examinations, the army did not accept his claims for compensation for any injuries to his knees, wrists and elbows. There are further records showing Mr King hurt his left shoulder during his period of service. The army medical records indicate this injury happened when he was playing football and was heavily tackled. This incident occurred around the time he was due for discharge, in September 1987.
39. As a consequence of his complaints about pain and injuries, Mr King was relieved of certain physical obligations. When this happened, he says he became an object of ostracism by his military peers. Mr King claims he developed a depressive condition in response to physical pain and ostracism he experienced in the army. The respondent does not agree with these submissions but, on 14 April 1986, made a “staff in confidence note” that recorded Mr King was “outwardly disgruntled with his current situation and [this] has caused him to be ostracised by his peers”. The record also said he had not been classified as below medical standard for his trade. A number of medical investigations and comments by senior officers are on file concerning Mr King and his performance around the time he was complaining that he had pain and injuries which prevented him from carrying out some duties.
40. On 3 April 1986, Mr King applied for discharge from the army for what he described as his “physical and mental well being adversely affected.” He was twice referred to a psychiatrist by the army for assessment in late 1986 and again in 1987. The army psychiatric reports of 1 October 1986 and 9 March 1987 appear at PT4/34 and PT 4/8. The psychiatrist on 1 October 1986 noted Mr King’s unhappiness in the army but made no psychiatric diagnosis. He recommended discharge as Mr King’s dislike of the military resulting in his lacking effectiveness. Dr P Tucker on 9 March 1987 noted Mr King’s lack of enthusiasm for the army and recommended his discharge as temperamentally unfit but diagnosed no psychiatric condition. Neither psychiatrist suggested Mr King be medically discharged.
41. In April 1987, a note [at PT5/113], forming part of the file accumulated documents concerning his request for discharge contains a comment: “2 base advised in February 1987 that member was a psych problem…”. The rest of the documents include the two psychiatrists’ reports above which find no psychiatric diagnosis. There are various comments by military staff, which note Mr King’s dissatisfaction and unsatisfactory performance. Another part of the record at page 113, says that Mr King’s physical disabilities preclude work but not sport. The end comment is that Mr King is “temperamentally unsuited to army”.
42. The discharge medical report on 9 September 1987 noted depressive episodes for at least 3 years “related to army life…”. The records also note Mr King was on anti-depressants at the time. On 15 October 1987, he was discharged from the army.
43. Parallel with the medical records and comments about Mr King’s performance in the army, are records about his drinking and drug taking in 1986 and 1987. The condition first manifested in 1982, according to a record of evidence presented to a court in Bathurst in July 1987 concerning Mr King’s substance abuse. Mr King was charged on 23 May 1987 with a drug offence and pleaded guilty.
44. After his discharge in 1987, there is a gap in medical records until the 1990s when Mr King saw the psychiatrist, Dr Greenwood. Mr King reported in his facts and contentions that he consulted a psychiatrist, Dr Greenwood, in 1996 for depression. Before us is a record of consultation with Dr Greenwood in 1997 and 1998. Then, he sought attention from Ms Taylor, a psychologist, who reported in 8 April 2002 to Dr Love. No diagnosis was provided in this report.
Legislation pertinent to Mr King’s claim
45. Sections 4(13), 14(3) and 5A of the SRC Act, are relevant to our decision. As Mr King is claiming for a mental injury rather than a disease, the definition of “injury” applies. The definition is set out in section 5A. It provides, in part, that “injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is 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) … that is an aggravation that arose out of, or in the course of, that employment;
46. Mr King is claiming that he suffered a mental injury arising out of, or in the course of, his employment. He has pursued an injury claim rather than a claim that he suffers a disease. The word “disease” is defined in section 5B and involves different tests to those applied to an injury, particularly contribution to a significant degree. The 1971 Act similarly provides in section 29 that the employment must be a contributing factor to the disease although in somewhat different terms.
47. Section 4 of the SRC Act is an interpretation section and subsection 4(13) reads:
(13)For the purposes of this Act, an employee who is under the influence of alcohol or a drug (other than …) shall be taken to be guilty of serious and wilful misconduct.
48. Mr King further claims that, when symptoms of his mental injury first arose, the 1971 Act was still in force and that the definition of “injury” was similar to the current definition. Section 5 of the 1971 Act also provided that an injury may be mental or physical. He contends he suffers a mental injury within the meaning of the 1971 Act and that it is sufficient that the cause of the injury, being alcohol and cannabis abuse, occurred during the course of employment without any further demonstration of a link to employment.
49. Section 14 of the SRC Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee in certain circumstances. Subsection 14(1) says the injury must result in death, incapacity for work or impairment. Mr King’s facts and contentions set out that he is claiming under sections 14, 16 and 19. Section 16 deals with medical expenses and section 19 with incapacity. Mr King has not specified his medical expenses for section 16 or the amount of compensation he deserves for incapacity in accordance with section 19.
50. Subsection 14(2) and (3) of the SRC Act limit the entitlement to compensation in some circumstances, providing:
(2) Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
51. The effect of subsections 4(13) and 14(3) when read together is that, if Mr King was under the influence of alcohol or a drug, he is taken as guilty of serious and wilful misconduct and compensation will not be payable. There is no similar provision under the 1971 Act directly disqualifying from compensation an injury caused by alcohol or cannabis.
Consideration of cannabis abuse claim
52. In the army documents [ST51/12] is a copy of an “attestation form” signed by Mr King on 14 March 1980 saying he has been made aware of the army policy on drug abuse. Nevertheless, it is part of Mr King’s case that his cannabis abuse arose during army service from 14 March 1980 to 15 October 1987. Mr King says his cannabis abuse has continued since. He further claims there were depressive symptoms already manifested during army service. He concedes that, whether it was sufficient to warrant a diagnosis of depression at that point, might be debatable but the later fully developed depressive illness was a product of cannabis abuse, which in turn was caused by army service. Mr King gave evidence that he applied for discharge because he felt he was no use to the army in the condition he was in. He recalled seeing two army psychiatrists, Drs Williams and Tucker. He thought this was because “the army was tired of my attitude …they wanted to find out what was going on inside my head”.
53. He said that his cannabis use was due to pain and ostracism. In 1981 he started feeling soreness in his knees. There was no specific accident or anything that caused a knee injury, but he felt constant pain in his knees, which he reported to the army. He attributed this to the shoes the army issued, canvas sandshoes with no sole support. He said running in sandshoes and in boots, carrying a load on his back, “doing manoeuvre sort of things”, changing direction quickly and stair climbing, gave his knees a lot of pain. He told us he had treatment for knee problems in the army, starting physiotherapy in early 1982 and having an arthroscopy in 1985. We note army medical records show Mr King was examined and treated in respect to his complaints of pain.
54. Mr King also gave evidence that he noticed pain in his arms one day “when we were rope climbing and my forearms pumped up that hard that I had to drop off the rope”. He said he was ridiculed in front of his peers and told to get back up on the rope. Despite claiming he was given no sympathy, Mr King recounted that he was sent to a specialist and tested for carpal tunnel syndrome. He told us that after the examinations he was told there was nothing wrong. Nevertheless, he continued to experience pain.
55. Mr King further said that, as a result of his complaints of pain, he was medically downgraded, that the downgrading precluded his performing as a mechanic and that he was made the “janitor” of his unit. He said he cleaned toilets and mowed lawns and was looked down on because he was seen as being given special treatment. He further gave evidence that, at his last posting, because of medical downgrading and restrictions he had to do physical training at his own pace. He said the army halted his work load and put him on bench type work, where he sat down at a bench as opposed to doing normal mechanical duties. He added: “they were just trying to reluctantly keep me employed for the day. It was anything they could come up with”. In this connection, we have noted at paragraph 32 above that Major O’Neill wrote on 14 April 1986 that the applicant had not been medically downgraded to the extent that he should be assigned other duties.
56. In further evidence, Mr King said he felt he had become an outsider so he drank and smoked pot in reaction. His drug taking first manifested in 1982, according to a record of evidence presented to a court in Bathurst in July 1987 when Mr King was charged on 23 May 1987 with a drug offence and pleaded guilty. Towards the end of 1987, Mr King recounted that there was a drug raid on the barracks and that, when he was questioned, he admitted he had smoked pot. Mr King said he was never counselled about his cannabis habit although he acknowledged that he was disciplined for cannabis use.
57. When we examined the army records, we came across entries, made on 13 August 1987 and on 18 August 1987, which concern Mr King’s cannabis use. Lieutenant Colonel L R Wilson on 13 August 1987 addressed a “notice of intention to order discharge” to Mr King (or ‘Kinghorne’ as he was then known). The notice set out that records of interview showed he admitted to repeated instances of drug abuse as follows:
·You admitted to using marijuana about six times a month.
·You admitted to using marijuana for the last six years.
·Your admission to purchasing 20 dollars of marijuana from persons unknown at Kings Cross.
·Your admission of normally purchasing marijuana in Liverpool anywhere.
·Your admission to using marijuana on 23-24 May 1987 at Bathurst.
58. The notice went on to refer to records showing Mr King was charged with using cannabis on 23 May 1987, and that he pleaded guilty and was found guilty of the offence. As well, the notice referred to advice about a previous civil conviction on 1 April 1986 for:
·Possession of a prohibited plant.
·Found guilty at Holland Park Magistrates Court QLD.
59. Lieutenant Colonel Wilson set out that as a consequence he considered Mr King unsuitable for further service and intended to order his discharge under Australian Military Regulation 176(1)(N) on the grounds that his retention was not in the interests of the army. Mr King was invited to show cause and informed of assistance, including legal assistance, which was available.
60. On 18 August 1987, another record shows that the applicant signed a statement in connection with the discharge notice. In this statement, the applicant firstly set out that he was counselled by the commanding officer of 2nd Base Workshop Battalion on that day about the army’s intention to discharge him on the grounds that it was not in the army’s interest to retain him. He secondly stated that he did not wish to show cause to remain in the army and wished to be discharged at the earliest possible time.
61. On the basis of the above records, we find that Mr King’s claim that his cannabis abuse arose out of or in the course of his employment is unsustainable. The records show that his purchases of cannabis and civil offences occurred outside barracks, were regarded as sufficiently serious as warranting his discharge and that the army considered his retention was not in its interest. It is clear from these records that Mr King’s cannabis abuse did not arise out of or in the course of his duties.
62. In addition, we find the applicant did not sustain an injury or disease within the provisions under the 1971 Act. Relevant sections of the 1971 Act read:
27(1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.
63. Mr King’s cannabis use was not in any way related to his employment and was grounds for his discharge. This leads us to conclude that Mr King’s use of cannabis was not within the course of his employment and did not arise out of it under the 1971 Act and under the SRC Act.
64. There are also further reasons why Mr King’s claim for compensation arising from his cannabis use cannot succeed. The army discharged Mr King for these abuses when he failed to show cause. Lieutenant Colonel P D Hopper on 19 August 1987 also signed a notice of intention to order his discharge for the reasons that retention of Mr King was not in the army’s interest and that he had declined to show cause.
65. Firstly, we observe that Mr King was counselled on 18 August 1987 in consequence of the army’s discovery of his history of cannabis use. Mr King was not telling the truth when he gave evidence that he was never counselled. We find, on balance, that the truth of the matter is set out in the army records to which we have referred. Mr King’s cannabis abuse did not arise out of or in the course of his army service but was a private activity in which he indulged on several occasions off the base and for which he had a criminal record. The army was not responsible in any way for this conduct, as is reinforced by Mr King’s failure to show cause when he was offered the opportunity at the time of discovery of his cannabis use. He also was offered assistance including legal assistance but chose not to avail himself of this and declined to show cause. The army regarded his conduct as a matter sufficiently serious to warrant his urgent discharge.
66. As well, we agree with the tribunal’s findings in McPherson and Repatriation Commission (1988) 8 AAR 229. In that case, Senior Member B J McMahon, and Members Brigadier J A Hooper and Dr M E C Thorpe, considered whether concealment of a material medical factor amounted to “serious default or wilful act” under the Veterans’ Entitlements Act 1986 (the VE Act). Mr McPherson concealed a foot condition for which he later sought a veteran’s pension. The tribunal considered his concealment was a wilful act that meant he was not entitled to a pension. Mr King’s smoking cannabis clearly was concealed or it would not have been necessary for his commanding officer to organise a raid, which revealed his stash.
67. We therefore find that Mr King has not established any grounds for entitlement to compensation for any injury arising out of his cannabis abuse. Such a claim is prohibited within the terms of the definitions in sections 4 and 14 of the SRC Act as it was at the time of his claim, made in 2005. Subsection 4(13) at the time of application, in 2005, read:
For the purposes of this Act, an employee who is under the influence of alcohol or a drug (other then a drug prescribed for the employee …) shall be taken to be guilty of serious and wilful misconduct.
68. Further, section 14 of the SRC Act read, in part:
… compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee …
69. Mr King’s conduct was the reason for his discharge and this action clearly demonstrates that the army did not condone his cannabis use or encourage or enable it in any way. Although drug abuse was not identified as misconduct in the 1971 Act, Mr King’s use of the drug was regarded so seriously by his superior officers that he was discharged for the offences recounted in the records described above. It follows that Mr King’s cannabis abuse is not susceptible of compensation under section 14 of the SRC Act.
70. Although it is not necessary to find further reasons for disqualification of Mr King’s claim that he is entitled to compensation because of his cannabis use, we further note that section 14 provides that compensation is not payable for an injury that is intentionally self-inflicted or caused by serious and wilful misconduct. In our view, Mr King’s conduct might well be so described although the terminology was not that used in 1987.
71. We also note that section 4 read, in part:
Injury … does not include any … disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee …
72. Mr King was discharged on the grounds that he had been using cannabis as detailed in army records and on the resulting assessment by his superiors that his “retention is not in the best interests of the army” [ST276/338]. While drug use was not specifically an offence under the 1971 Act, his conduct in this regard resulted in his discharge. In our opinion, this demonstrates that his claim would not have been sustained under the provisions of that Act as well as under the SRC Act at the time of his claim and under the current provisions.
Consideration of alcohol abuse claim
73. We heard from Mr King that he developed a drinking habit while he was in the army. He argued this indicated his claimed alcohol abuse arose out of or in the course of his employment with the army. Mr King told us he was not allowed to drink in the barracks but, at organised army functions, “you could go for your life” and alcohol was supplied. He gave further evidence he felt he had to drink “to fit in” and “alcohol was cheap”. He also gave conflicting evidence about when and where he drank, at one point saying mainly he drank on base because it was cheaper although, at another point, he gave evidence that mainly he drank on weekends. We found this inconsistent because army records we discuss later in these reasons show that Mr King did not live on the base after 1983.
74. Mr King further admitted to the tribunal that he was charged by police for being under the influence of alcohol when returning from an army function where he was served alcohol. Since his discharge, Mr King said he had continued to drink heavily. He told us about the various jobs he had occupied until 2002 when he said he “failed a medical” and had to stop driving buses. Mr King recounted how he had seen several doctors over the years since his army discharge about his drinking. On the other hand, we note there are scant references in medical reports and notes before us to a prolonged and continuous drinking history.
75. We have a copy of a document setting out the alcohol and drug policy for the army. Chapter 93 of this policy guideline deals with alcohol and drug abuse. The guidelines make it plain that neither drug nor alcohol abuse is tolerated by the army. Paragraph 9307 states that the abuse of alcohol is considered unacceptable behaviour. However, we are not aware of the date of issue of these guidelines and Mr King did not give evidence about having any knowledge of these guidelines at the time he was in the army. Therefore, we have not placed much weight on the guidelines. We have preferred to rely on the evidence as to the army’s responses to Mr King’s drinking habits.
76. There are a number of references in army records to Mr King’s excessive intake of alcohol. Clinical notes refer to significant alcohol abuse. For example, a note dated 9 September 1987 refers to his history of high alcohol intake for the last 3 years. In our view, these notes indicate a level of concern in the army about Mr King’s alcohol abuse rather than his version of encouragement by the army. What is at issue is whether Mr King’s documented and admitted excessive drinking arose out or in the course of his service.
77. Some decided cases have looked at what is sufficient to indicate that something has arisen out of employment. In respect of any causal connection, we note that in Repatriation Commission v Law (1980) 31 ALR 140, the Full Court of the Federal Court held, in interpreting the words “attributable to” in subsection 8(1) paragraph (b) of the VE Act:
It seems clear that the expression "attributable to" in each case involves an element of causation. The cause need not be the sole or dominant cause: It is sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributing cause.
78. Similarly, we accept that an injury may arise out of or in the course of employment without being the sole or dominant cause. For further guidance, we have turned to the High Court’s decision in Roncevich v Repatriation Commission (2005) 222 CLR 115 (‘Roncevich’) and in Henderson v Commissioner of Railways (1937) 58 CLR 281 (‘Henderson’). In Henderson, the High Court observed this is an expression about what a workman is reasonably required, expected or authorised to do to carry out his actual duties. Certainly, drinking on the job is not a normal requisite for employment.
79. As well, in Roncevich, the High Court held:
… A causal link alone or a causal connexion is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.
80. However, the High Court did not suggest that a condition or injury or the like was attributable to particular employment merely because the employment was contemporaneous. As Senior Member Allen and Dr Thorpe, Member, pointed out in Spriggins and Repatriation Commission (2007) 96 ALD 737 (‘Spriggins’), Justice Kirby also made an accurate assessment of causation at paragraph 57 of Roncevich. Kirby J refers in his dissenting judgment to a decision of Denning J in Wedderspoon v Minister of Pensions [1947] KB 562, saying:
Denning J says that the cases show that when the cause of death or disablement lies in the man’s own personal or domestic sphere and the war service does no more than provide the circumstances in which the cause operated, it is not attributable to war service.
81. In our view, the army was no more in Mr King’s case than a surrounding circumstance to his drinking habits. His drinking to excess was in no way attributable to his army service and did not arise out of or in the course of service. We have reached this conclusion even though we acknowledge that the legislative test of connection is an extremely broad one. The SRC Act, which applied to Mr King at the time of his claimed injury, also uses the phrase “arising out of or in the course of, employment”. As the tribunal pointed out in Spriggins, this is a wider formulation than the legislative formula connecting a condition to service in other legislative provisions for compensation. Cases such as Comcare v Mather & Mitchell (1995) 56 FCR 456 and Kennedy v Telstra Corporation (1995) 61 FCR 160, which follow on from Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473, can be distinguished as depending upon the concept of occurrences within the course of employment. The tribunal observed the distinction was specifically referred to by Cowdroy J in Coward v Military Compensation and Rehabilitation Service (2006) 153 FCR 535 at 540 paragraph 27:
Following the above authorities, I consider that the appropriate approach is to consider the nature of the activity being undertaken at the time the injury is received or the disease is contracted, and the circumstances in which that activity is being undertaken. If the activity is the cause of the injury or disease, and that activity is something which is required or expected as part of the person’s duties, then clearly the employment contributes to the injury or disease: see Roncevich.
82. The tribunal noted that Mr Spriggins was encouraged to go ashore, in that vessels were provided in order to transport crew members to the island and a bus provided for transport once ashore. Also, the presence of the shore patrol evidenced precautions taken should crew members act inappropriately or get drunk and disorderly. The tribunal also accepted the applicant’s evidence that there was, at the very least, tacit encouragement from officers and non-commissioned officers for sailors to go ashore. The same or similar evidence has not been presented to us in the present case. Mr King has made unsubstantiated claims that drinking was encouraged.
83. The present case is clearly distinguishable. There is no evidence before us to support the applicant’s contention that his drinking was encouraged or expected. His superiors were concerned about his drinking as is shown in the notes made in 1987 mentioned in paragraph 76 above.
84. While, as the court pointed out in Roncevich, the causal connection with the Defence Service is not confined to the sole or dominant or prominent cause of the injury but that a contributory cause or connection, is sufficient, we have found no element of contribution by or from army sources or arising from service in the army in Mr King’s case. His dissatisfaction with army life may have led him to look for other recreational outlets but these outlets were not part of his service. In confirmation of this, we take into account Mr King’s evidence that he indulged his drinking habits mostly at weekends and that he applied in 1983 to live off the base and was granted permission to do so. This suggests he indulged his alcohol habits off base for the latter part of his service period.
85. Also see QX07/1 and Military Rehabilitation & Compensation Commission (2007) 94 ALD 750. In that case a member of the Royal Australian Navy had served in Iraq; on the way back from Iraq the ship he was on stopped at Goa and they had shore leave for three days. He became firstly intoxicated and then ingested a large quantity of what was described as white china and suffered a number of heart attacks and ended up as a quadriplegic. The tribunal found as a matter of fact that what he was doing in ingesting the white china could not in any way be considered as part of his employment and that it took him way outside anything which could be considered to have arisen out of or in the course of his employment.
86. There is no evidence before us apart from the statements made by Mr King that the army condoned alcohol abuse or encouraged or enabled excessive drinking in any way. Mr King was discharged because of his cannabis use but the overall assessment of him was that his “retention is not in the best interests of the army” [ST276/338]. While the main reason for this assessment of his performance was his cannabis abuse, concern about Mr King’s drinking was expressed in previous army records and noted as part of his unsuitability or poor attitude.
87. Taking all these matters into account, we find Mr King’s drinking did not arise out of or in the course of his army service. This finding applies under the 1971 Act as well as under the SRC Act for the same reasons as set out above in relation to cannabis abuse because both legislative schemes rely on a successful claim for liability being shown to arise out of or in the course of the employment.
88. We also observe that his claim regarding alcohol use is prohibited within the terms of the definitions in sections 4 and 14 of the SRC Act as it was at the time of his claim, made in 2005. Section 4 (13) at the time of application, in 2005, read:
For the purposes of this Act, an employee who is under the influence of alcohol … shall be taken to be guilty of serious and wilful misconduct.
89. Further, section 14 of the Act read, in part:
… compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee …
90. The reading of these provisions together means that a person who is under the influence of alcohol is guilty of serious and wilful misconduct and that an injury caused by such conduct is not compensable. Mr King has based his claim for mental injury in part on the argument that he was drunk in the course of his employment. This flies in the face of any possible denial that he was not under the influence of alcohol when required to carry out his duties. It is clear that a claim such as Mr King’s is not sustainable under the provisions of the SRC Act as Mr King, by virtue of his being under the influence of alcohol, was guilty of serious and wilful misconduct under section 4(13). As it follows that compensation is not payable pursuant to section 14 in this situation, the second aspect of his claim fails. His alcohol abuse claim fails as well as his cannabis abuse claim.
91. Alternatively, if Mr King only drank off the base and at weekends when he was not on duty, we consider this means his drinking habit did not arise out of or in the course of his employment. We do not accept or find that pain from his physical injuries caused him to drink. Even if this were the case, medical opinions in 1986 and 1987 found no injury and no attribution to his employment. Liability was not accepted or established in respect of knee and elbow or wrist injuries. Mr King’s accepted shoulder injury arose late in his service period due to an incident that occurred shortly before his discharge in 1987.
92. We therefore find no liability established for Mr King’s alcohol abuse or any mental injury of alcohol abuse.
Consideration of claim of mental injury causing depression
93. Mr King gave evidence to the effect that three main factors caused his psychiatric problems. These factors were the culture of the army, the response to physical pain from army related injuries and the psychological impact on him as a young man of the ostracism of his peers in the army. We have eliminated the arguments that the culture of the army was responsible for his cannabis abuse and alcohol abuse or that any liability attaches to these habits for the reasons expressed above.
94. We also have found that Mr King was not declared medically unfit as he claims. We further find that his claims of being given degrading tasks such as cleaning toilets have not been established to our satisfaction. On balance, we find that Mr King was given light duties but do not find that these duties were degrading or designed to degrade Mr King. The army records indicate his superiors were simply trying to find something for him to do when he claimed he could not perform his usual duties as a mechanic and we further note that medical opinion was that he was not prevented from performing his usual occupation
95. We have not yet dealt with the ostracism by his peers. It is true that an army memo referred to Mr King’s unpopularity and ostracism. There is no doubt that Mr King endured some ostracism. The further question is whether it resulted in his suffering depression, however small a contribution it made to such a condition. Before joining the army, Mr King said he had no experience of depression.
96. The applicant said that in 1981 he started feeling soreness in his knees. There was no specific accident or anything that caused the injury, but he felt pain in his knees, constant pain which he reported to the army. He attributed this to the shoes he was issued with, canvas sand shoes with no sole support. He said running in those sandshoes and running in boots, carrying a load on his back, “doing manoeuvre sort of things”, not just running but changing direction quickly and stair climbing, gave my knees a lot of pain. He told us he had treatment for the knee problem in the army, starting physiotherapy in early 1982 and having an arthroscopy in 1985.
97. He also gave evidence that he noticed pain in his arms one day “when we were rope climbing and my forearms pumped up that hard that I had to drop off the rope, which caused me to be ridiculed quite frankly, I was ridiculed in front of my peers, basically told to get back up on the rope, there was not a hint of concern or sympathy”. He recounted that he was sent to a specialist for the arms and tested for carpal tunnel syndrome and, when that came back negative, was told that the test result was negative and there was nothing wrong. He also said that he experienced problems that stemmed from the forearm trouble, basically from the elbow down.
98. Mr King claimed he was medically downgraded and that precluded him from doing his daily job which was a mechanic and he was made the “janitor” of his unit. He said he was known as the “janitor”. He said he cleaned toilets and mowed lawns and was looked down on because he was seen as being given special treatment as he did not have to do certain things that the others had to do. He felt he had become an outsider.
99. He further gave evidence that, at his last posting because of medical downgrading and restrictions he had to do physical training at his own pace. He told us the army halted his workload, put him on bench type work where he sat at a bench instead of normal mechanical duties. He added: “they were just trying to reluctantly keep me employed for the day. It was anything they could come up with”. We do not find any element of unfairness or ostracism in this special treatment.
100. Army records show as a consequence of his complaints about pain and injuries, Mr King was relieved of certain physical obligations. When this happened, he says he became an object of ostracism by his military peers. We note, on 14 April 1986, an officer made a “staff in confidence note” that recorded Mr King was “outwardly disgruntled with his current situation and [this] has caused him to be ostracised by his peers”. The record also said he had not been classified as below medical standard for his trade. On 3 April 1986, Mr King applied for discharge from the army for what he described as his “physical and mental well being adversely affected.” Examination by two psychiatrists then took place at the instigation of the army.
101. Mr King gave evidence that he applied for discharge because he felt he was no use to the army in the condition he was in. He recalled seeing two army psychiatrists, Drs Williams and Tucker. He thought this was because “the army was tired of my attitude …they wanted to find out what was going on inside my head”. Army records show that Mr King’s request for discharge initially was refused. It was only when his cannabis use was discovered that his superiors recommended his discharge. Records around this time show his superiors tried to fast track the discharge because they felt Mr King was a bad influence on younger soldiers. However, before the discharge occurred, a series of further medical examinations took place. Among the examinations was that of a psychiatrist in 1987 which found no specific psychiatric disorder.
Medical evidence
102. There is an absence of clinical evidence and opinion which indicates that Mr King’s current psychiatric problems arose out of or in the course of his service experiences. Some of the army records mentioned below suggest concern that Mr King’s behaviour and ineffectiveness as a soldier might be due to a psychiatric problem but the two psychiatrists who examined him in 1986 and 1987 made no such diagnosis. On 12 February 1986, an army doctor prescribed some medication for depression when Mr King discussed suicide ideation with the doctor.
103. The parties have relied respectively on the opinions of Dr Akkerman and of Dr Synnott. Dr Akkerman put in his report that he requested further information which was supposedly supplied with the report but was not attached. He examined Mr King on 22 February 2007 and took a history from him before reaching his diagnosis. By contrast, Dr Synnott’s report makes substantial reference to materials with which he was supplied to inform his diagnosis and opinion. He set out a great deal of the army records which influenced his opinion as well as medical opinions to which he referred. In oral evidence, Dr Synnott spoke about the massive amount of material he digested before writing his report.
104. Dr Akkerman considers that Mr King’s employment with the army was “a substantial contributing factor” to his suffering alcohol abuse and marijuana abuse. As to this opinion, our findings above in respect to the statutory disqualification of compensation for alcohol abuse and marijuana abuse taint the doctor’s attribution of his employment in the army as a substantial contributing factor to his present mental disorder.
105. Dr Akkerman also noted he was instructed that Mr King suffered injuries to his knees and elbows, was consequently downgraded medically and was required to work as an “odd job man” and driver. The history he took continued so as to set out that, as a result of Mr King’s assignment to light duties, he claimed regular and persistent abuse from other soldiers and that his morale and psychological state suffered. Dr Akkerman recorded that he heard from Mr King that senior officers treated him in a way he found degrading. The doctor recorded that Mr King complained the officers did not take his injuries seriously and called him a “malingerer” and a “hypochondriac” but then corrected the account taken, noting Mr King later said they implied this but did not actually use these words.
106. Dr Akkerman also took a history that Mr King claimed he had a psychiatric condition which started in 1983/1984 and masked the symptoms by drinking alcohol. We have seen no supporting evidence of any psychiatric problem as early as 1983/4 and observe that in his claim form Mr King said his depression started in 1986. There is no mention of an early history of drug taking in Dr Akkerman’s report apart from the attribution of drug abuse to the army experience.
107. Dr Akkerman considered that both alcohol abuse and cannabis abuse generally have multiple causes. He took a brief history of a happy childhood and noted Mr King’s father was a gambler. Although he did not note any family history of genetic predisposition to these conditions, he mentioned that a person has to have “a constitutional, pre-existing, genetic pre-disposition to developing these conditions”. He went on to observe that, if exposed to circumstances that provoke these issues, the person will develop those conditions. This led him to conclude that employment in the army was a substantial contributing factor.
108. Dr Synnott took a similar history from Mr King but contrasted this with the records kept by the army which described Mr King’s behaviour and manner while in the service. He noted that comments in the contemporaneous information provided by the army gave a different perspective. He answered several specific questions in his report. When asked:
Do you consider Mr King suffered any, and if so what, depressive/psychological condition (“the claimed condition”), on or around 1986 that results from, or has been contributed to by, his military employment?
Answer “No”.
109. In Dr Synnott’s opinion, given at point 3.2 of his report about medical history, he observed that Mr King described sufficient psychological symptoms for diagnosis of major depressive disorder but the symptoms appeared related to non-army issues despite his claims to the contrary. Dr Synnott wrote more than once in his report that he considered Mr King’s major depressive disorder was not the result of his military employment. He added at point 3.2 that Mr King may well have a vulnerability as a result of biological factors (the family history of psychiatric illness and referred to possible inheritance of vulnerability) and developmental issues such as parenting he received and the environment in which he was raised. Dr Synnott went on to observe that Mr King had to deal with a range of life issues since leaving the army. Earlier in the report, Dr Synnott noted Mr King had taken various jobs, including bottle shop deliveries, carpet cleaning, mechanic with a local council, mechanic with another company, the bottle shop again and then 5 ½ years with Sydney buses. After his psychotropic medicine prevented his continuing with Sydney buses, Mr King was recorded as saying he was offered cleaning work but declined it. He said he then did six months of property maintenance before operating his own business of property maintenance for 1 ½ years. He had not worked since 2002.
110. In response to a question during his giving oral evidence, Dr Synnott agreed it was unlikely that Mr King’s condition developed just immediately before he saw him. Dr Synnott said, “I would think judging on his history that he’d had it for some time, particularly because he said he hadn’t worked since, I think it was 2003”. While Mr King currently described sufficient psychological symptoms to meet the diagnostic criteria for major depression, Dr Synnott found there was no evidence when he was assessed 20 years ago that he had a psychiatric condition. Dr Synnott added that, simply because people describe psychological symptoms does not mean they have a condition or disorder. Dr Synnott also noted that people may take anti-depressant medication but not have a disorder. When he was prescribed medication by Dr Greenwood in 1996, this did not necessarily mean that Mr King had a disorder.
111. Dr Synnott also answered a question about the long history of alcohol abuse going back to 1986 or so, saying that such a history was not necessarily connected to the present depressive illness. In his opinion, alcohol abuse may be connected to depression but not necessarily, because many people get depressed and don’t drink or abuse drugs and many people abuse drugs and are not depressed.
112. Dr Synnott told the tribunal that he based his opinion on examination of Mr King and the history he took from Mr King as well as numerous reports from the army and from the psychiatrist who saw him whilst he was in the army. He had looked at the army material supplied to see if there was something relevant there and brought it into his overall assessment of the situation. The doctor pointed out that, in his summary and assessment, he alluded to some of the adverse comments made by people during Mr King’s time in the army including references to his purchasing cannabis. Dr Synnott noted comments about Mr King’s attitude and personality contributing to his situation, rather than any objective evidence that the army caused this problem.
113. Dr Synnott said, from his reading of army reports supplied to him, Mr King was considered medically fit to continue in full-time physical duties as a mechanic although Mr King thought he had medical problems. The file suggested there were no physical problems preventing him from continuing in his usual position. One of the comments made by his commanding officer, on 9 June 1986, was that Mr King was not effective as a vehicle mechanic. He noted the officer went on to talk about Mr King’s lack of direction and motivation, saying his general behaviour was good but he had a poor attitude, was not really accepted by his peers, avoided part of the work in his trade and failed his proficiency course. Mr King’s failure was attributed to disinterest. Then there were other comments about an administrative warning, on 27 May 1987:
You are hereby warned that you are regarded as unsuited as a soldier, initial suitabilities demonstrated, the discharge, disruptive influence on younger soldiers, lack of initiative, lack of regard of working practices…
114. Dr Synnott further noted the medical officer’s statement in 1986:
..... can’t see any future for him in the army. He sees that his problems with his wrists and knees are preventing him from carrying out his trade … .
And another comment by J.M. McDonald, Captain for Commanding Officer:
The minimum of effort applied to military training, was an interest result in technical training for displays and states a lack of interest. Complete lack of enthusiasm towards his trade skills and work and to military requirement. He is a sportsman, despite a state of physical disability, precludes trade work but not sport.
115. These army records and other records, to which Dr Synnott referred, form part of the materials before the tribunal and are in evidence.
116. Turning to the years after Mr King left the army, Dr Synnott observed that there is nothing to suggest there that Mr King was physically incapacitated to work, that he had any significant psychiatric problems or that he had any psychiatric incapacity for work, after he left the army. For example, there was a letter from Steve Kerr, General Manager of Bensons:
This is to confirm that Geoff King …has been employed by Bensons Turbo Centre for a period of 12 months. During this time Geoff has been specialising in turbo charger repair, overhaul and remanufacturing for light and heavy vehicles as well as his duties as a motor mechanic. We have also been able to use Geoff’s excellent communication skills in the area of phone and counter sales including technical advice. Geoff has been a most reliable, courteous and helpful employee. We would be happy to recommend Geoff to any future employers.
117. Mr King gave evidence that he worked for Bensons for a time before he worked on Sydney Buses for 5 ½ years. Extracts from the records of the State Transit Authority confirm his sick leave record there and refer to a conversation he had with an officer of the State Transit Authority in which he said he had been diagnosed with depression by Dr Greenwood and that he had a similar episode while in the army.
118. In Dr Synnott’s opinion, Mr King’s continuing to work successfully for several years after leaving the army suggested no psychiatric disorder at the time of his discharge. Overall, Dr Synnott expressed the opinion that the alcohol and substance abuse that Mr King demonstrated or described whilst in the army had no material contribution from the army itself. In his opinion, these habits related to his personality and his dissatisfaction with being in the army, and so it was related to issues within himself. If Mr King abused alcohol or drugs during his time in the army, in Dr Synnott’s opinion, it was not the same as saying that the army caused it.
119. As Dr Synnott saw Mr King’s problem, he did not have a psychiatric condition at the time he was in the army, and this was confirmed by two psychiatrists who saw him at the time. The alcohol and substance abuse may have been contributed to by his dissatisfaction with the army but there was no evidence to suggest the army caused it.
120. When coupled with Mr King’s evidence that he was made the toilet cleaner and ostracised by his peers, his counsel argued that it was more likely than not that substance abuse commenced in the army and was at least in part responsive to how Mr King felt following those events of early 1986. Dr Synnott made it clear that he did not accept this. When pressed, he said this was possible but there was insufficient evidence to be any more definite than that. In his opinion, this was not the case.
121. Both Dr Synnott and Dr Akkerman noted Mr King’s complaint that his problems started in 1983 although Mr King did not give evidence to this effect before the tribunal. Dr Synnott recorded that Mr King told him that he saw his GP in 1984 about his psychological problems and was told “to put up with it” and prescribed antidepressant medication. Dr Synnott also recorded that Mr King told him he saw a GP in 1986, who referred him to a psychiatrist, who told him to “see an alcohol and drug counsellor”. The history of referral to a psychiatrist in 1986 accords with the army records.
122. Dr Synnott noted various comments and warnings to Mr King about his conduct and that the psychiatrist who, on 9 March 1987, made “no specific psychiatric diagnosis”, made this comment before he recommended Mr King’s discharge as “temperamentally unfit for military service”. Dr Synnott also recorded Mr King’s account that he saw a GP and a psychiatrist in 1991, when he was in a relationship and was referred to Dr Greenwood, psychiatrist, around this time. However, our first evidence of referral to Dr Greenwood dates to 1996. Dr Synnott added that Mr King felt so stressed at one stage that he cut his wrists, was admitted to Hornsby hospital for a day and then saw another psychiatrist, Dr Schureck. We note these events occurred in 1999 according to the tribunal documents. Also, Dr Akkerman recorded that Mr King told him he saw Dr Greenwood, in 1996, which is the date medical records before us substantiate.
123. Dr Synnott also recorded that Mr King had a significant relationship for 10 years that ended in 2000. He noted Mr King’s 8 year old son was living with him. Dr Akkerman took a similar history of events since the army but had fewer job details and noted that Mr King ceased work in 2003. Dr Akkerman made no reference to any of the army materials which Dr Synnott took into account and it was plain from his oral evidence that he had no access to these when he wrote his report.
124. As well as the above reports and army records, we have clinical notes from Dr Love and Dr Pluschke. Dr Love, who was the applicant’s GP from 2000 to 2003, referred Mr King to a psychologist, Ms Taylor, in 2002. Dr Love made no mention of alcohol or drug problems in his clinical notes and specifically said there was no such problem in 2001. He recorded that Mr King suffered:
Longstanding depressive illness, adequately treated with Efexor XR 150 milligrams, relationship and family issues need assessing, issues in his past need to be dealt with.
125. Ms Taylor saw Mr King in 2002 for psychological assessment and therapy. Ms Taylor did not make any diagnosis but, on 8 April 2002, recorded that Mr King described to her his depression, alcohol abuse and cannabis abuse. She noted a family history of psychological vulnerability, based on the history she obtained from Mr King. She recommended cognitive behavioural therapies. She added that, if appropriate, a referral for drug and alcohol abuse counselling would be made.
126. Dr Pluschke, who treated Mr King from 10 July 2003 onwards, recorded on 21 November 2006, he had not treated the applicant for depression. Nevertheless, he suggested “review for mental health plan” and “referral psychologist”. He also wrote that Mr King was not currently on any treatment although he recorded thoughts of self harm and anti-depressants he had been taking. He mentioned Mr King’s alcohol intake of 60 to 80 grams five days a week.
127. Records of treatment, dating back to 1996, show the psychiatrist, Dr Greenwood, saw Mr King that year and diagnosed depressive illness. Dr Schureck, another psychiatrist saw Mr King in 1999, after a suicide attempt and hospitalisation for one day. There are also references in the military records before us to Mr King’s excessive alcohol use and to cannabis use during his service and to examination by two psychiatrists in 1986 and 1987 before his discharge from the army.
128. Army records before us reveal that the army had concerns about Mr King’s mental state while he was in the service. When, on 3 April 1986, Mr King applied for discharge from the army for what he described as his “physical and mental well being adversely affected”, the army twice referred him to psychiatrists for assessment. The army psychiatric reports of 1 October 1986 and 9 March 1987 appear at PT4/34 and PT4/8. The psychiatrist on 1 October 1986 noted Mr King’s unhappiness in the army but made no psychiatric diagnosis. He recommended discharge as Mr King’s dislike of the military resulting in his lacking effectiveness. Dr Tucker on 9 March 1987 noted Mr King’s lack of enthusiasm for the army and recommended his discharge as temperamentally unfit but diagnosed no psychiatric condition. Neither psychiatrist suggested Mr King be medically discharged.
129. In April 1987, a note [at PT5/113], forming part of the file of accumulated documents concerning his request for discharge contains a comment: “2 base advised in February 1987 that member was a psych problem…”. The rest of the documents include the two psychiatrists’ reports above which find no psychiatric diagnosis. There are various comments by military staff, which note Mr King’s dissatisfaction and unsatisfactory performance. Another part of the record at page 113, says that Mr King’s physical disabilities preclude work but not sport. The end comment is that Mr King is “temperamentally unsuited to army”.
130. The discharge medical report on 9 September 1987 noted depressive episodes for at least 3 years “related to army life…”. The records also note Mr King was on anti-depressants at the time. On 15 October 1987, he was discharged from the army. Parallel with the medical records and comments about Mr King’s performance in the army, are records about his drinking and drug taking in 1986 and 1987. His drug taking first manifested in 1982, according to a record of evidence presented to a court in Bathurst in July 1987 when Mr King was charged on 23 May 1987 with a drug offence and pleaded guilty.
131. After his discharge in 1987, there is a gap in medical records until 1996 when we have evidence that Mr King saw the psychiatrist, Dr Greenwood. Mr King reported in his facts and contentions that he consulted a psychiatrist, Dr Greenwood, in 1996 for depression. Before us is a record of consultation with Dr Greenwood in 1997 and 1998. Then, he sought attention from Ms Taylor, a psychologist, who reported in 8 April 2002 to Dr Love. No diagnosis was provided in this report.
findings as to causation of depressive illness
132. We are reliant on the medical opinions before us in forming a view about the causes of Mr King’s current mental disorder and its date of onset. In reaching our conclusion as to whether Mr King’s psychiatric problems arose out of or in the course of his experiences in the army, we have considered all the material described above and have paid particular attention to the two expert witnesses who gave oral evidence, Dr Akkerman and Dr Synnott.
133. In our view, based on the medical evidence before us, Mr King has a depressive illness with the earliest likely date of onset being 1996. 14 July 1997, is the first date in the material before us when mental illness was identified. This was when Mr King was treated by Dr Greenwood, who diagnosed mental illness and prescribed medication in the form of Zoloft. Dr Greenwood certified on that date that he diagnosed major depression for which Mr King required counselling and medication, being Zoloft, 100 ml. On 9 March 1998, Dr Greenwood confirmed in writing that Mr King had been seeing him for 15 months for treatment of depression. A letter from Northern Sydney Health addressed to Dr Schureck, on 26 February 1999, sets out that Mr King presented to a Hornsby hospital following a suicide attempt. A ward admission sheet and emergency department clinical record on the same day refer to the same event. The history taken mentioned that Dr Moes of Galston had increased his Zoloft dosage from 100mls per day to150mls per day that week.
134. However, we find insufficient evidence to indicate that Mr King’s depressive illness had any roots in his army experience. The onset was well after his discharge and may have occurred later than in 1996. In the opinion of Dr Synnott onset occurred around 2002, when Mr King ceased work.
135. We have located no evidence in contemporary medical reports that ostracism may have caused any depressive illness. It is true that the army had concerns about Mr King’s mental state while he was in the service. In April 1987, a file note mentioned “2 base advised in February 1987 that member was a psych problem…”. When, on 3 April 1986, Mr King sought discharge from the army he described himself as having problems, being “physical and mental well being adversely affected.” He was twice referred to a psychiatrist by the army in 1986/1987 for consideration of his condition as mentioned above. However, no mental illness was diagnosed. After each consultation, the psychiatrist noted Mr King’s unhappiness in the army but made no psychiatric diagnosis. The records also show Mr King was on anti-depressants around 1986/1987. On 15 October 1987, he was discharged.
136. Medical reports prepared in the years after Mr King’s discharge noted other reasons for Mr King’s mental problems although Mr King gave a history of poor treatment in the service. By contrast with the history taken by Dr Akkerman, Ms Taylor recorded Mr King’s family history of “psychological vulnerability”. She noted “his sister has a diagnosis of schizo-affective disorder, his brother depression and he believes that his paternal grandmother also suffered with depression”. Dr Synnott took notice of Ms Taylor’s information, comparing it with the account he obtained from Mr King, which made no mention of such a family history. Dr Synnott referred to extensive information supplied with the respondent’s request for a report whereas Dr Akkerman complained in his report that he had never received the material supposedly attached to the request for a report from the solicitor for Mr King. At the hearing, he gave evidence to the effect that he was still not fully briefed about earlier opinions and information about Mr King and felt at some disadvantage in making accurate findings without a full history.
137. Dr Synnott paid particular attention to Mr King’s history in the army by reference to service records. He noted that Mr King had not disclosed to him any family history of mental illness although he had disclosed a family history to Ms Taylor. Dr Akkerman made his diagnosis after examining Mr King although he was concerned that he had not received information which he requested from the applicant’s solicitors. When asked why the histories recorded differed in some respects, Mr King gave evidence to the effect that, as the consultations with Dr Akkerman and Dr Synnott were not for treatment, he did not disclose some matters to them.
138. Dr Akkerman provided his report on 22 February 2007 as it was 11 days since he had assessed Mr King and he was concerned that the material he had requested several times was not forthcoming. He “decided it best to prepare this report despite not having received further background information”. Thus, Dr Akkerman’s report indicates no awareness of the conclusions formed by psychiatric examination of Mr King in 1986 and 1987. Those psychiatrists found no diagnosable psychiatric condition and no psychiatric ground for discharge at the time. Dr Akkerman has made no reference to these opinions and also has made no reference to contemporary records and assessment of Mr King’s behaviour by his contemporaries and superior officers.
139. We have already indicated we prefer the opinion of Dr Synnott as to diagnosis. We prefer the opinion of Dr Synnott for several reasons. He dealt at length in his report with the material about Mr King from army sources. His report gives the impression of diligence and thoroughness compared to that of Dr Akkerman and Dr Akkerman expressed concern about deficiencies in his information. Dr Akkerman did take a comprehensive history from Mr King of how he saw his time in the service but was not in a position to verify his version of events with contemporaneous records. On the version of events given by Mr King, Dr Akkerman reached his conclusions which were aligned with Mr King’s personal view.
140. We have mentioned some of the military material above that was set out in Dr Synnott’s report. Dr Synnott also picked up on possible genetic pre-disposition to psychiatric difficulties from the report of Ms Taylor. Nevertheless, this did not lead him to the same conclusion as Dr Akkerman about causation. Dr Synnott found no link to the army service.
141. We are further persuaded to Dr Synnott’s view by the history we have gleaned from other medical records available. We note that although some army personnel thought that Mr King had psychiatric problems, the two psychiatrists who saw him in 1986 and 1987 thought not. They thought he was disgruntled and unsuited temperamentally to army life. Though they were aware of his use of cannabis and his excessive alcohol intake they did not find abuse of these substances to the degree that either habit amounted to a psychiatric disorder. They also noted he took some depressive medication but did not recommend this medication in their clinical notes.
142. After his discharge, Mr King went into the workforce and held a variety of jobs including 5 ½ years as bus driver. Mr King gave evidence that during these years he continued to experience problems. We have seen no medical records indicating any treatment for a psychiatric problem until approximately 10 years after his discharge. The earliest next record before us dates from 1997, with Dr Greenwood. Then, there was the attempted suicide in 1999 and Mr King’s evidence that he was drinking heavily and smoking cannabis and tobacco.
143. Next, there is the referral by Dr Love to Ms Taylor which was in respect of depression rather than any substance abuse issue. Dr Pluschke on 21 November 2006, says, “I have not treated Geoffrey for depression.” But further down in that paragraph he says: “Suggest review for mental health plan and referral psychologist”.
144. We are mindful that the issue is whether this man has an injury within the meaning of the Act that had its genesis in army life. There’s no requirement in the Act that the injury or the effects of the injury has to have matured or materialised during army service. Nevertheless, it must arise out of, or in the course of, or be materially contributed to, by the experiences in service, depending whether the claim concerns an injury or a disease. See Military Rehabilitation & Compensation Commission v Wall (2005) 88 ALD 1.
145. The fact that the condition doesn’t develop to the point of being clinical, and therefore an injury, in the sense described in Comcare v Mooi (1996) 69 FCR 439, until after service is finished, does not prevent a legitimate claim. The Full Court of the Federal Court considered a situation of late development in Comcare v Etheridge (2006) 149 FCR 522 about asbestos-related diseases. However, the difference in the present case is that the army bears no liability for Mr King’s cannabis use and alcohol use.
146. Dr Synnott noted Mr King had to deal with a range of life issues since he left the army and these experiences may have lead to the condition. The family history may have contributed to the psychological problems he was then experiencing. At point 3.5, Dr Synnott listed other factors involved in the current presentation of Mr King. These included an “inordinate and excessive attribution … to events that ceased 20 years ago” as well as “a negative mind-set; lack of motivation to return to employment; regression in to a sick role; maladaptive pattern of behaviour”. In his opinion, Mr King would not be successful in any return to work not because of a psychiatric incapacity but due to a lack of motivation and a negative attitude to work.
147. On balance, on the basis of contemporaneous evidence during the period of service and at the time of discharge as well as medical records dating from the 1990s to the present, we find that there is no nexus established between Mr King’s mental condition and his army service. We prefer Dr Synnott’s opinion that the depressive condition came about due to genetic predisposition and life events from around 1992. We note that Dr Synnott thought the likely date of clinical onset of major depression was 2002 when Mr King stopped work, but have found that it may have been in 1996, when taking into account the events that occurred in that year.
148. As well, the judgment of Finn J in Comcare v Sahu-Khan (2007) 156 FCR 536 significantly elevated the threshold of what is sufficient to constitute a material contribution. We are mindful of the judgment of von Doussa J in the case of Wiegandv Comcare Australia (2002) 72 ALD 795, which allows a perception about occurrences during employment to establish sufficient cause for compensation but there still needs to be a finding that some actual events occurred. We are not satisfied that Mr King was in any way persecuted or mistreated or had any reason to perceive he was mistreated at any time. The records before us indicate that, on the contrary, Mr King’s superiors went to great lengths to try to assist Mr King and to find activities that suited him in view of his complaints. He also received a great deal of medical attention and care. In any event, we are not persuaded that Mr King suffered a mental injury in any way related to these events but his condition arose many years later. In addition, we are not persuaded that the pain of which Mr King complained in his knees, elbows and wrists amounted to an injury which gave rise to compensation. We further note that the Full Court of the Federal Court found in Kirkpatrick v Commonwealth (1985) 9 FCR 36, where a person is psychotic or completely delusional and merely their own perceptions cause thoughts that something has happened as opposed to actual events, that is not sufficient to give rise to a connection with employment. The evidence does not justify a finding that Mr King suffered a delusional reaction to a work injury such as was found compensable in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626.
149. The applicant argued that there was no question in this case that he did have a shoulder injury, knee injuries, did suffer ostracism and was medically downgraded when the ostracism occurred. We do not agree. The shoulder injury occurred after 1986 when Mr King claimed depression set in. His other claimed injuries were thoroughly examined clinically but doctors made no record that the pain of which Mr King complained was explained by army activities and no liability was ever accepted. Mr King’s physical condition did not mean that he was medically downgraded but he was regarded as medically fit and able to continue his work. While he still maintained that he was in pain, he has not demonstrated that this led to clinical depression. He also has not shown that ostracism led to depression as he did not exhibit a depressive condition until several years after his discharge. As we have found, clinical onset occurred in around 1996 at the earliest.
CONCLUSION
150. In this case we are not satisfied, on the evidence, that there has been a mental injury to Mr King that arose out of or was attributable to his service. As well, the evidence presented by the respondent identifies a history of wilful misconduct which disqualifies Mr King from making this claim.
DECISION
151. We affirm the decision under review that the respondent is not liable to pay compensation to the applicant in respect of any mental injury.
I certify that the 151 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member and Dr Maxwell Thorpe, Member
Signed: .........................[Sgd]...........................
Jennifer Wong, AssociateDates of Hearing: 17-18 January 2008
Date of Decision: 8 May 2008
Counsel for the Applicant: Mr A AnforthSolicitor for the Applicant: Mr D Steiner, Capital Lawyers
Counsel for the Respondent: Mr B Dube
Solicitor for the Respondent: Ms K Miller, Sparke Helmore Lawyers
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