MacLeod and Military Rehabilitation and Compensation Commission
[2006] AATA 667
•31 July 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 667
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2001/62
GENERAL ADMINISTRATIVE DIVISION ) Re IAIN ALASDAIR MACLEOD Applicant
And
MILITARY REHABILITATION & COMPENSATION COMMISSION
Respondent
DECISION
Tribunal The Hon R J Groom (Deputy President) Date31 July 2006
PlaceHobart
Decision The decision under review is set aside and the matter remitted to the respondent with the following directions:
(a) The respondent is liable to continue to pay compensation to the applicant on and from 30 October 2000 in accordance with the provisions of the Act in respect of an injury namely major depression suffered by the applicant on or about 1 May 1995.
(b) As a result of the said injury the applicant has been incapacitated for work within the meaning of s4(9)(b) of the Act on and from 30 October 2000. (c) The amount of compensation is to be assessed.
DEPUTY PRESIDENT
CATCHWORDS
Compensation – Safety, Rehabilitation and Compensation Act 1988 – service in the Royal Australian Navy – mistreatment whilst serving on ship – chronic major depression – liability initially accepted – cease effects determination – credibility of witnesses - whether contributed to in a material degree by employment – whether can make findings contrary to the original determination – conflict in medical evidence - meaning of “material degree” – incapacity – decision set aside
Safety, Rehabilitation and Compensation Act 1988 – ss4(1), 14(1), 16, 19, 49(9)
Lees v Comcare (1999) 29 AAR 350
Australian Postal Corporation v Oudyn [2003] FCA 318
Hannaford v Telstra Corporation Ltd [2005] FCA 1298
Power v Comcare (1998) 89 FCR 514
Hannaford v Telstra Corporation Ltd [2005] FCA 1298
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Suters v Australian Postal Corporation (1992) 28 ALD
Comcare v Canute [2005] FCAFC 262
Commonwealth v Smith (1989) 18 ALD 226
Bessie v Postal Corporation (2000) 60 ALD 529
Jones v Dunkel (1959) 101 CLR 298
Wiegand v Comcare Australia [2002] FCA 1464
REASONS FOR DECISION
31 July 2006 The Hon R J Groom (Deputy President)
Background
1. The applicant served in the Royal Australian Navy (“the navy”) from 6 January 1992 until 9 October 1998 when he was discharged as medically unfit.
2. On 22 September 1998 the applicant claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act’) for depression and related medical conditions which he alleged were caused by his employment in the navy.
3. The applicant claimed that he was subjected to harassment and other forms of mistreatment whilst serving on HMAS Hobart in 1995 and that this caused the onset of his depression and other conditions.
4. By a determination dated 24 November 1999 liability was accepted under the Act for “... an acceleration of a disease to which your military service contributed in a material degree, namely chronic major depression”. The applicant then commenced to receive compensation.
5. However on the 30 October 2000 it was determined that “... the effects of Mr MacLeod’s military service ceased no later than 30 October 2000 ...”. Compensation payments were then stopped.
6. The determination of 30 October 2000 was reviewed and affirmed in a decision of 1 March 2001. It is that decision which is now being reviewed by the Tribunal.
7. The hearing of this review application was held in Launceston on 8, 9 and 10 February 2006 and in Hobart on 24 February 2006, 29 March 2006 and 19 May 2006. Mr M Brett appeared for the applicant and Mr B Morgan for the respondent.
8. Six witnesses gave evidence at the hearing. They were the applicant, his wife Pamela May MacLeod, former leading seaman Craig Scott McShane and psychiatrists Dr Brian Burke, Dr Ian Sale and Dr Alan Jager.
9. A substantial number of documentary exhibits were tendered by the parties and received into evidence including the “T Documents” lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975. Both Mr Brett and Mr Morgan made helpful written submissions.
The Issues
10. As mentioned, the employer initially accepted liability but later it was decided that Mr MacLeod should no longer be paid compensation. The reasons for terminating compensation payments appear to have been the receipt of a medical report from Dr S Johl suggesting the applicant was no longer incapacitated and also fresh evidence that the applicant’s condition was unrelated to his military service. This fresh evidence was in reports from the Director of Entitlements, Mr John Sainsbury, dated 17 July 2000 and Dr Ian Sale dated 8 September 2000.
11. The original determination and compensation payments paid to 30 October 2000 are not now in question.
12. The principal issues required to be determined can be described as follows:
a)Did the applicant, on and from 20 October 2000, continue to suffer a “disease” or an aggravation of a “disease” within the meaning of the Act? Has he since ceased to so suffer and if so when?
b)What is that “disease”?
c)Was that “disease” or its “aggravation” contributed to in a material degree by the applicant’s employment in the navy?
(d)If so, was the applicant, on and from 30 October 2000, incapacitated from work as a result of that “disease” or its aggravation. Has he since ceased to be so incapacitated and if so when?
Legislation
13. At all relevant times the applicant was a member of the defence force and therefore an employee within the provisions of the Act (see s5(2)(b)).
14. Section 14(1) of the Act provides:
“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.
15. Section 4(1) of the Act contains the following relevant definitions:
“’aggravation’ includes acceleration or recurrence; ...
’ailment’ means ... any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); ...
‘disease’ means...:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation; ...
‘injury’ means...:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employees employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain promotion, transfer or benefit in connection with his or her employment”.
16. Section 4(9) of the Act provides:
“A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened”.
Is the Tribunal Permitted to Make Findings which Conflict with the Original Determination?
17. Counsel for both parties sensibly cautioned the Tribunal about making such findings citing as authority Lees v Comcare (1999) 29 AAR 350, Australian Postal Corporation v Oudyn [2003] FCA 318 and Hannaford v Telstra Corporation Ltd [2005] FCA 1298.
18. Sackville J had said in Power v Comcare (1998) 89 FCR 514 (at 526) “I think the better view is that the reconsideration decision-maker, for the purpose of determining whether Comcare had a continuing liability to compensate the applicant for his coronary condition, had power to consider whether that condition had ever been causally related to his work”.
19. However in a subsequent decision Moore J in Hannaford v Telstra Corporation Ltd [2005] FCA 1298 expressed a contrary view.
20. This dilemma caused by the conflicting views of individual Judges of the Federal Court has now been removed by the recent decision (2 June 2006) of the Full Federal Court in Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 (Heerey, Dowsett and Conti JJ).
21. Heerey J said (at paragraph 8):
“The text, structure and underlying policy of the SRC Act do not suggest that a determination under s14 permanently enshrines every finding of fact on which the determination is based”.
Conti J said (at paragraph 59) that:
“The AAT below was duly empowered, upon the true construction of the SRC Act and in the events which happened;
i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s14 of the SRC Act ...”
22. This Tribunal is therefore free to consider all of the evidence and to determine whether the applicant’s medical condition is sufficiently causally linked to his military service to entitle him to further compensation.
Credibility
23. Counsel for the respondent strongly challenged the applicant’s credibility. Mr Morgan submitted that the applicant is “unworthy of belief” and he “tailored his evidence to suit his case”. The credibility of Mrs MacLeod was also seriously challenged.
24. It is therefore appropriate that the Tribunal makes some general findings concerning the credibility of Mr and Mrs MacLeod and of the other witness of fact Mr McShane. More specific findings will be made later in these reasons.
25. The Tribunal has had the special opportunity over a number of days of the hearing to observe and hear the applicant’s evidence and to carefully note his demeanour and the manner in which he answered questions, particularly during cross-examination.
26. An undisputed reality must be borne in mind when assessing the applicant’s credibility and that is that for many years he has suffered and he continues to suffer a serious depressive illness. The Tribunal accepts that this illness has impaired his memory and recall. This is a critically important consideration and is relevant in assessing all of his oral evidence and past statements.
27. The Tribunal has formed the view that generally the applicant gave a frank and honest account of events consistent with his memory and perception. His evidence concerning the events on HMAS Hobart and the health problems he has experienced since those events was generally reliable.
28. The applicant exhibited an openness in admitting facts which he would have known would not have supported his claim. As one example, he offered in cross-examination that he had held the position of secretary of the Devonport Fly Fishing Club and had initiated a marketing plan for that Club. (Transcript p114)
29. The applicant was subjected to detailed cross-examination about statements he was reported to have made to various doctors and psychologists over the years as recorded in their medical notes and reports. The applicant disputed a number of the statements recorded in those notes and reports. The purpose of this detailed questioning was obviously to establish the applicant’s dishonesty, or at least, his unreliability as a witness. However the Tribunal is not satisfied that the inconsistencies between the statements recorded by the doctors and psychologists and the applicant’s responses in his oral evidence reveal dishonesty. They may have resulted in deficiencies in the applicant’s memory and recall, or possibly errors in hastily written records which have not accurately reflected statements made at the time by the applicant. There may also on occasions have been some misunderstanding of what the applicant had said to the doctor or psychologist at the time.
30. Certainly at times the applicant appeared to have indulged in some exaggeration. This was recognised by his own medical witness, Dr Burke, and also by his counsel in Mr Brett’s written submissions. It was also evident in the answers he gave to the questionnaires he completed at the Hobart Clinic. At the same time there was some understating of issues which had been suggested as possible alternative causes of his illness, for example, the nature of his relationship with Mr McDonald and psychiatric and other illnesses in his original family. It might also be argued that he was not as forthcoming as he might have been about his music, house painting and other activities. However on most occasions he readily admitted matters that were put to him.
31. It does not follow that because there have been some inconsistencies revealed and on occasions a degree of exaggeration and understatement in the applicant’s accounts he is therefore wholly unworthy of belief. Indeed the Tribunal is satisfied, taking into account the deficiencies referred to above, that the applicant is generally worthy of belief. It accepts his evidence, including his perceptions, about the events which happened on HMAS Hobart and the effect those events have had on his health. Those matters have not been invented or concocted. As will be explained later his account is supported by other evidence. The Tribunal is satisfied that the applicant has given an honest account of the central facts supporting his claim consistent with his memory and belief.
32. Many factual and other issues relating to the applicant’s credibility were raised on behalf of the respondent in both oral and written submissions and could be inferred from questions asked in cross-examination. It is not intended to detail them all in these reasons. However all those matters have been carefully considered including points raised about psychological tests, the assault by Leading Seaman Bloodworth, the EOS bottles, the alleged reports from Messrs Rogers and Kanyasi and other reports, the rostering on-duty in port, the issues of vandalism and theft, the applicant’s daughter’s illness and the many other matters raised. None of those matters alter the Tribunal’s view about the applicant’s credibility as already expressed.
33. As far as Mrs Macleod is concerned the Tribunal finds her to be a generally credible witness. She is obviously a strong person and is particularly loyal and supportive of her husband. This may have caused her on occasions to paint a somewhat uncritical and supportive picture of the applicant and of events. However the Tribunal finds her account of important matters to be generally honest and reliable.
34. Mr McShane was also an honest witness who gave a genuine account of events on HMAS Hobart in accordance with his recollection and belief. Those events, of course, happened more than 10 years ago.
Applicant’s Underlying Vulnerability
35. The applicant’s vulnerability and predisposition to suffering a depressive illness was emphasised many times in the course of the hearing. Dr Sale, the psychiatrist called by the respondent, suggested that the applicant’s experiences aboard HMAS Hobart may have “triggered” the initial episode of depression but that the real cause was the applicant’s underlying vulnerability. The evidence suggests a number of possible causes of this vulnerability to depression including genetic factors, the adverse influence of the applicant’s father and the fact that the applicant had been subjected to sexual abuse as a teenager. I will now consider each of those possible causes of his predisposition to depression.
Genetic Factors
36. Dr Sale in his report of April 29 2002 said “... very strong family history of psychiatric disorder recorded in The Hobart Clinic notes suggests there may also be some underlying genetic vulnerability”.
37. In The Hobart Clinic discharge summary dated 16 August 2000 signed by Dr Alan Jager Consultant in Charge, it states:
“Family History
Father suffered depression in the past. Grandmother psychiatric treatment possibly for depression. Brother alcoholism, sisters anxiety, brother ‘bad nerves’, paternal uncle possible ADHD, son ADHD and autism”. (Exhibit R10)
38. In handwritten “progress notes” from The Hobart Clinic records written by “Amanda Foster Medical Student” the following is recorded:
“Brother – alcohol abuse
Sister – breakdown
Mother – bad nerves
Father – Iain believes he was depressed in past
Grandmother – treated by psychiatrists for depression
6 yo son – ADD
- Autistic”
39. It his oral evidence the applicant said he was not aware of any close relative having a psychiatric disorder. He disputed the accuracy of many of the references to his families medical history in medical reports and records.
40. Mr Brett said in his written submissions at paragraph 14:
“The evidence concerning family history of mental illness is vague, and completely reliant upon hearsay reports of statements made by Mr MacLeod, many of which are in dispute”.
41. Although the evidence is limited it is sufficient to satisfy the Tribunal that it is likely that the applicant’s genetic makeup is a contributing cause of the depressive illness he has suffered since 1995.
Adverse Influences of Father
42. On many occasions the applicant told his treating psychologist, nurses and doctors of the difficult relationship he had with his father.
43. As early as 7 June 1996 he is reported in medical notes of that date to have said to psychologist Ms Barbara Robinson:
“...
Older brother was bright, f’s favourite ... described father as ‘wild’ ... heavy drinker ... some physical abuse”
and later
“Also significant issues in his relationship w his father – conflict in earlier years, feels f doesn’t have confidence in him
Chronic difficulties around issues of self esteem/confidence and anger”
44. In notes accompanying a referral dated 5 August 1996 Dr Virgona reported:
“... significant from his background is a hypocritical father for whom nothing is good enough ...”.
45. On 9 September 1996 psychologist Barbara Robinson noted:
“Chronic issue of self esteem and deep-seated under confidence in relationship w father. Spent most of our time talking about these (2 words indecipherable) re nature of f/son relationship”.
46. In the nursing admission summary of The Hobart Clinic dated 24 July 2000 it is recorded as follows:
“Spent a lot of the interview talking (about) family of origin dynamics. Thinks father was tough and strict and did no favours as far as fostering confidence and self esteem. Angry (with) mother (because of) her inaction to father’s abuse”.
47. On the next day, that is the 25 July 2000, The Hobart Clinic progress notes record:
“... very harsh punisher, dogmatic. Did not get on well with him ...”.
48. On 27 July 2000 The Hobart Clinic notes record progress notes written by Dr Jager. They record a telephone conversation with Mrs MacLeod who is reported to have said:
“... Fa aggressive and bad tempered. Hits kids. Punched him in mouth aged 5. Iain “always broke things”. Threw paint on garage door aged 5. Father very egotistical. Gives 30 minute monologues. Iain tried to measure up to him, following in his father’s footsteps. Always challenged and fought him”
Some of those matters were challenged by Mrs MacLeod in her evidence before the Tribunal.
49. The Hobart Clinic progress notes of 7 August 2000 include the following comments:
“Recognises his inability to stride at relationships. Used to blame others but now blames himself and his “negativity”. It comes from his Fa., the island experience in Scotland.
Always felt in competition (with) his brother”.
50. In The Hobart Clinic discharge summary dated 16 August 2000 and signed by Dr Jager the following comments are recorded:
“Father merchant seaman and ‘very egotistical’. He was also a successful musician and a celebrity in his homeland ...”
and further:
“The focus of future attention should be on continuing treatment of his major depressive disorder and long term psychotherapy for treatment of his adolescent sexual abuse and feelings of anger and hostility stemming from childhood”.
51. Dr J Dowsett a naval medical officer said in a report of 13 October 1998:
“... sensitive to criticism – some related to childhood and upbringing ...”
52. The Tribunal is satisfied that the applicant was subjected to a significant level of physical abuse and criticism by his father from a young age and this has led to psychological harm including a serious loss of self esteem and confidence. This may also have contributed to an extent to his depression.
Sexual Abuse
53. The applicant suffered sexual abuse as a teenager. There are many references in the medical records and reports tendered in evidence to this sexual abuse.
54. Barbara Robinson psychologist recorded in her handwritten notes of 7 June 1996:
“Lived in Scotland between ages 13-17 ... sexually abused by family friend during that period. He finally confronted the man and called a halt but the man died of a heart attack the next day ... feels v angry and cheated that he got off scot free. Much guilt and anger remain over this period and he has not worked thru it before ...”
and later
“Clearly very distressed re period of abuse”.
55. In an outpatient clinical record dated 29 July 1996 at p.15 of the T Documents it is recorded:
“P.Hx sex abuse age 15”.
56. On 5 August 1996 Dr Virgona, a psychiatrist, recorded in his “specialist notes” as follows:
“... a prolonged period of sexual abuse during adolescence (for which he has had no counselling – it’s been a secret for all these years). He sees this as robbing him of N adolescence – isolating him from his peers in a way which persists”.
57. Barbara Robinson provided a typed report (Exhibit R13) dated 17 July 1997 which stated:
“However he was determined to talk and return to the old themes of his difficult time on the Hobart and the period of childhood sexual abuse ...”
and further
“Reports that wife has given him an ultimatum that he should tell his parents about the sexual abuse, otherwise she will leave him. She apparently sees his problems as stemming from his hiding the truth from his family”.
On 27 July 2000 Dr Jager of The Hobart Clinic noted:
“... sexually abused by his male boss for 3 years when working as a painter ... feels ashamed”.
58. Dr Sale and Dr Burke both make references in their reports to the history of sexual abuse. It is interesting to note that Dr Burke, who was engaged on behalf of the applicant for medico legal purposes, in his report of the 24 October 2000 (p.6) described the period of sexual abuse as follows:
“After three months he decided to leave this and to take up an apprenticeship with a painter and decorator which he completed in the employ of a man, who in the course of his apprenticeship, seduced him. His mentor achieved this by exploiting his naivety, which must have been considerable, by persuading him that in order to reach mature masculinity it was necessary to have a relationship with another man.
He soon became ashamed of this relationship and it marred his enjoyment of an interest in his trade to the point where he gave it as one of the reasons why he decided to leave when he was in his mid 20’s”.
59. The applicant in his evidence said as follows: (Transcript p.14)
“By whom? --- It was my boss.
Right? --- I was explained by my boss that if I didn’t have sex with the same gender I couldn’t have children.
You believed him? --- I believed him at that time, but - - --
How old were you then? --- I was 16.
So that was a sexual relationship, was it? --- Yes, it was.
And how long did that go on for? --- That went on for at least 18 months up to two years.
And during this time you were performing your apprenticeship? --- Yes.
How did it end? --- He became very religious.
He ended it? --- Yes, he became an Elder in the church.
And it was his decision to end the relationship? --- Yes, he – yes, he did. I didn’t – I didn’t fall in love with a gender, I fell in love with a person.
Right. And that was consensual? --- Yes”.
60. In cross examination by Mr Morgan for the respondent the applicant gave the following answers:
“Did you also tell Dr Jager that you feel ashamed? --- Feel ashamed? Is this over the abuse matter?
Yes? --- Incorrect.
In the typed report the words appear at the top of page 3, “He felt ashamed about this”. And in the hand-written notes the words appear “three years when working as a painter, anal sex, feels ashamed”? --- So he is not saying that I said ashamed, he is saying that I felt ashamed. No, I have not felt ashamed over that incident”.
And further (Transcript p.191)
“... it is untruthful of you to suggest that you did not tell Dr Jager in 2000 that you felt ashamed of this relationship? --- I was talking about the shame on a societal level, a world level. For example, if you know, like in the navy if people found out that you were in such a relationship, there would be an element of shame concerning that issue”.
61. The Tribunal recognises that the applicant’s current explanations of the consensual nature of the relationship may, in his mind, be more accurate than the record of his earlier comments which perhaps were intended to reflect what he thought other people might want to hear from him.
62. At various points in time the applicant has given two accounts of the way in which the relationship with Mr MacDonald ended. The first is described in Barbara Robinson’s notes referred to in paragraph 53 above. The second version is that Mr MacDonald became an Elder in his church and decided to end the relationship.
63. The Tribunal concludes that the first version was a rather dramatised version of what actually happened. It accepts the applicant’s oral evidence that the relationship was brought to an end by Mr MacDonald after he became a church Elder.
64. The Tribunal is satisfied that the applicant was sexually abused by his employer when undertaking an apprenticeship as a painter and decorator in Scotland. The employer used deception and his age and authority to lure the applicant into the relationship. The Tribunal finds that the nature of the relationship, the way it ended, and the fact that it had been kept secret for many years have profoundly affected the applicant and have markedly contributed to his depression.
65. In reaching that view the Tribunal is persuaded, in part, by the following statement by Dr Sale in giving his evidence:
“... for me as psychiatrist the most signficant matter in this man’s life was the sexual abuse that he experienced from the age of 15. Sexual abuse, no matter what way you dress it up, is known to be a cause of significant psychiatric problems in adult life. And a lot about this man is consistent with the sort of things that can arise out of sexual abuse. That is periods of depression, periods of times when he seems to have difficulty controlling anger and perhaps just not really succeeding at life”.
66. Dr Burke agreed that the relationship could be a “possible” influence on his mental health. It was put to him by Mr Morgan as follows: (Transcript p.243)
“And the homosexual relationship, I suggest, is also a possible influence on his psychological development? --- Possible”.
67. Dr Jager clearly recognised the sexual abuse issue as significant. This can be seen from the comments he made in his discharge summary dated 16 August 2000 which has previously been referred to.
68. After considering all of the evidence the Tribunal finds that genetic factors, the adverse influence of his father but particularly the period of sexual abuse in his teenage years have all interacted to create a serious vulnerability in the applicant and made him much more likely to suffer from depression.
Period between Apprenticeship and Posting to HMAS Hobart
69. The applicant commenced his apprenticeship with Mr MacDonald in March 1981 when he was 15 years of age (see Application for Entry to Navy at R16). According to details completed by the applicant himself he concluded his apprenticeship in March 1985.
70. Following his apprenticeship the applicant was then unemployed in Scotland for a significant period. He was a self-employed painter from 14 November 1986 until 1 July 1990 when he obtained employment as a painter at the Bankstown Hospital. He worked there until he enlisted in the navy.
71. The applicant and Mrs MacLeod married on the 15 April 1989. Their first child Robert was born on 18 October 1989 and their second child Andrew on the 17 September 1993. Their daughter Janette was born on 17 January 2000.
72. The applicant applied for entry into the navy on 6 March 1991 as a “direct entry tradesman”. He was assessed as suitable for entry. A psychology branch record of 11 April 1991 stated that the applicant was “quite quiet reserved guy who has reasonable service knowledge and motivated but didn’t come across as particularly enthusiastic ...”. It noted “tends to worry a bit”.
73. Mr and Mrs MacLeod clearly had some concerns about navy life and the attitude of the navy prior to the time the applicant joined HMAS Hobart. Those concerns are reflected in the naval social workers report (R16) and in particular the handwritten notes of a conversation with Pamela MacLeod on 10 September 1993. Those notes indicate that at the time Mrs MacLeod believed the navy didn’t care about her family. She was reported to have said “I’m sick of the navy’s attitude” and “hate this organisation”. “He gets all the rotten duties”. It is noted that this was only a week before their son Andrew was born.
No Health Problems Before HMAS Hobart
74. There is evidence of some behavioural problems in childhood and at school and also evidence that the applicant was unemployed for a period following his apprenticeship. There were some problems experienced during the initial period in the navy. As well, there were some pressures on the domestic front including some financial difficulties and the demands of caring for two young children.
75. However a most significant factor in this application is that the applicant had not suffered any kind of depression or serious ill health before he was posted to HMAS Hobart. There is no evidence of his requiring any medical attention for any such conditions before he was posted to HMAS Hobart.
Events Aboard HMAS Hobart
76. In early 1995 the applicant was asked by “the poster” Chief Petty Officer Turner if he would agree to be posted to HMAS Hobart. The applicant discussed the proposal with his wife and later agreed to join Hobart.
77. The applicant undertook and passed a seagoing medical examination on 2 February 1995. It is also important to again note that he had previously undertaken psychological testing and interviews prior to entry into the Navy and passed all of those tests. Therefore there was no evidence of psychiatric or psychological problems at that point in time, nor when he joined HMAS Hobart.
78. Prior to taking up his posting on HMAS Hobart in January 1995 the applicant and Mrs MacLeod went onboard the ship to familiarise himself with the vessel. Mrs MacLeod alleges whilst on the ship, and in the absence of her husband she was subjected to sexual harassment including improper comments and touching. I accept Mrs MacLeod’s evidence that this did in fact occur on HMAS Hobart.
79. The applicant was posted to HMAS Hobart on 24 February 1995. The sea voyage on the ship commenced on 2 March of that year.
80. The applicant alleges that whilst on that voyage he was subjected to harsh and unfair treatment on the ship, including verbal abuse, harassment, being forced to undertake the worst rosters and duties, and including a physical assault by a leading seaman whilst the applicant was asleep in his bunk.
81. Details of the various allegations are set out in the applicant’s statement of facts and contentions as follows:
“PARTICULARS OF MISTREATMENT, ABUSE AND HARASSMENT
a. Deliberate sleep deprivation as a result of being forced to do double watches, and being woken constantly and unnecessarily during rostered sleeping times for the sake of non urgent tasks, such as emptying garbage bins and refilling compressed air bottles.
b. General harassment, including being singled out to perform multiple tasks at the one time, and being excessively and unnecessarily denigrated by superior officers in the presence of others, often as the result of false allegations by other members of RAN.
c. Verbal abuse by other members of RAN.
d. Being placed on Standing Sea Fire Brigade while being instructed to perform other duties at the same time; including being required to wear the Fire Brigade overalls and boots while performing regular duties, and at the same time as being required to wear “whites” when coming in to post.
e. Having complaints about the mistreatment ignored by the chain of command.
f. Being punched in the stomach while sleeping by another member of the RAN.
g. Senior members of the RAN not allowing a report of the punching incident to be sent to Canberra, as would be normal in such situations.
h. Deliberately being told not to bring full uniform kit aboard as would be unnecessary, and then being requested to perform a full Kit Muster, then being punished as could not perform the task.
i. Being forced to perform tasks outside of normal duties, such as painting, and then being denigrated for the standard of the work and the inferiority of the task.
j. Being forced to stay on duty every time ship was at port, resulting in there being no relief from ship duties.
k. Being forced to do nearly all of the ET repair work alone, which should have been shared amongst an entire team, resulting in being unable to attend to other duties at the same time, leading to being reprimanded and denigrated by other members of the RAN.”
82. In a statement headed “To Whom it May Concern” ... “Statement of Iain A MacLeod ...” which was attached to the applicant’s original compensation claim of 22 September 1998 (T5) the following is included:
“At the time of this posting I was a person of easy going disposition, very patient and good natured, I believe this was taken advantage of, and being new to the workings of shipboard life I was subjugated to four months of sleep deprivation, harassment, double watches, being placed on sea fire brigade while at the same time being ordered to fulfil other duties, being woken up in the middle of the night for the filling up of compressed air bottles, the emptying of bins etc while at the same time being expected to work to an impossible schedule which left little time for required rest periods. I received minimal co-operation by the divisional chain, who had a policy of informing me they had to work me hard and tough to an unreasonable level.
My emotional state upon leaving HMAS Hobart was, and still is completely disturbed. I suffered major depression, short concentration spans, loss of memory retention, extreme feelings of anger, and felt myself shunning family, friends and work colleagues. I still suffer these symptoms today. I abhor being around people and feel alienated from them.”
83. The Tribunal notes that the statement made by the applicant in 1998 does not include a specific reference to the alleged assault in his bunk. It could well have been an oversight by him but nevertheless it is interesting that it is not expressly referred to.
84. Despite the omission referred to in the previous paragraph, the Tribunal is satisfied that the particular incident did occur. However, it could not be considered a serious assault. There is no evidence of any physical injury of any kind including bruising. Nor is there evidence of any treatment sought by the applicant. Nevertheless the applicant was particularly upset by it.
85. The applicant believes that he was subjected to harassment and verbal abuse by Leading Seaman Bloodworth and Lt Rogers whilst serving HMAS Hobart.
86. In his oral evidence the applicant said:
“Within 10 minutes of leaving dock I was – I had – I was being screamed at by Lieutenant Rogers for not taking down the TV aerial from the captain’s cabin.”
“I was called an “effing useless” and very vulgar, very obscene threats. I have never been spoken to like that ever in my life.” (Transcript p 25)
87. When the applicant was asked “What happened during that trip?” he answered:
“It was terrible. It was nothing but sheer confusion. I wasn’t introduced to everyone in the workshop. There was people just turning up doing things that I didn’t know had anything to do with us. I was constantly told off by Bloodworth for being in the wrong place. I was getting blamed for things that I had no idea about or – it was just a terrible time. We were painting the smokers’ room. When went out – when we went out of Sydney Heads we hit a cyclone straight away that first day and the whole crew was stood down because of seasickness and there was lots of waves coming over the ship. I survived the first day but I got ill the second day, the Tuesday morning. I was very seasick the next morning. Rogers came down to the mess wanting to know where I was, and I was seasick, and he said, “You’ll be claiming welfare next” and he made me go back to work because everyone had been seasick the day before. So that was my introduction ----“. (Transcript p 26)
and further:
“Bloodworth and Lieutenant Rogers attacked me over my painting.
They verbally told me that I wasn’t much of a painter because they could see the colour still coming through the paint.”
“Call yourself a painter? You’re a piece of shit. You wouldn’t know how to paint anything.” (Transcript p 27)
He said that Lt Rogers verbally attacked him in the café, he said:
“I was sitting eating my lunch and he was like this in my face, spitting and shouting in my face.” (Transcript P29)
He said there were 80 to 90 people present.
88. Craig Scott McShane was called by the respondent. He was a Leading Seaman on HMAS Hobart at the relevant time and said in his witness statement:
“Lt Rogers was under a bit of stress. I think that this was from personal issues, being personal to him.”
and
“I remember Lt Rogers would fly off the handle occasionally and it wouldn’t have been out of character for him to have been shouting obscenities, etc.”
and further
“I can remember Justin Bloodworth. As a junior Leading Seaman (LS) he performed his job satisfactorily. I believe he got along all right with people but I recall that he had tendency to exaggerate the truth a little… he did have a big mouth.”
89. Mr McShane said of the applicant in his witness statement:
“In my observations of Mr MacLeod during the duration of the deployment, he was not very punctual, was the type of person who used to make himself scarce whenever hard work had to be done and did not place much pride or attention in his personal appearance. These were all factors which did not fit well with service life in general, especially not qualities that are suited to life onboard a warship.”
90. Psychologist Barbara Robinson’s report of 17 July 1997 includes the following comments:
“Talks of his time onboard (Hobart) as “warfare”, describes peers as untrustworthy and in particular is very hostile towards DO whom he describes as a clone of the man who abused him as a child. Feels no respect towards DO and was determined not to submit to his authority.”
91. In his oral evidence the applicant said he was referring there to Lt Rogers (Transcript P82). The applicant was asked by Mr Morgan:
“So you say you were very hostile towards Lieutenant Rogers whom you describe as a clone of the man who abused you as a child? –
Mr Macleod said
“At that time I saw my relationship with Ian. I had discussed it with various other people. Some people had decided that it wasn’t an affair it was actually abuse because I was so young. I saw some similarities with Rogers and I in rhe fact that maybe at some stage I may have been taken liberty of. This is what I was discussing openly with Barbara. I was discussing the possible similarities that Ian, you know, may not have been the person that I knew and I was reflecting back on Lieutenant Rogers on an experience that I – I had found Lieutenant to be a very unpleasant person.” (Transcript p82)
The applicant was further asked:
“Well, what were you alluding to? ---
Mr MacLeod said:
I was alluding to his manner. Ian – I Ian had a very short fuse, quite a wild temper and some of Lieutenant Rogers’ short fuse temperaments reminded me of Ian, but I did not mean in a sexual fashion, in that way.” (Transcript p83)
92. Dr Sale was asked by Mr Morgan:
“Is there any apparent significance from the point of view of the psychiatric state of Mr MacLeod to a description of an officer on his ship as a clone of the person about whom we have just been speaking? ---
Dr Sale said:
“Yes, indeed. That observation tends to make more sense of his difficulty in coping with being aboard HMAS Hobart, why he found it such a distressing experience. If it resonated with an earlier abuse; that the person who was largely responsible for giving him a bad time on Hobart resembled in some way the perpetrator of abuse, that is of great significance and would help explain why Hobart was a problem.”
93. The evidence is that after participating in naval exercises and undertaking various goodwill visits HMAS Hobart finally returned to Sydney on 3 July 1995. However the applicant left the ship some weeks before 3 July, probably on or about 17 June 1995 of that year. That early departure by the applicant from the ship, with no other reason offered, tends to support the applicant’s contention that he experienced a most difficult time aboard the ship.
94. The Tribunal is satisfied that these events occurred on HMAS Hobart despite the fact that there is no evidence of any written complaint of the incident before the Tribunal. It finds a degree of corroboration of the events in Mr McShane’s evidence. His assessment of Leading Seaman Bloodworth and Lieutenant Rogers suggest to the Tribunal they were not particularly disciplined individuals and were capable of behaving in the manner described by the applicant. Mrs MacLeod’s evidence of the applicant’s state of mind and behaviour when he returned from HMAS Hobart is accepted by the Tribunal as a truthful account. It supports, in a general way, the applicant’s claim that he had a most difficult time on HMAS Hobart. As well, the applicant has since August 1995 consistently referred to the difficulties he had on HMAS Hobart when discussing his health problems with doctors and psychologists. In the Tribunal’s mind the early references to problems on HMAS Hobart in medical records in August 1995 are particularly significant.
95. The Tribunal is satisfied that the applicant’s experiences aboard HMAS Hobart were deeply distressing for him. He was subjected to verbal abuse, harsh criticism, harassment and various other forms of mistreatment including an assault whilst asleep. This was a vulnerable person with a predisposition to depression. There is merit in Mr Brett’s point in his written submission when he said:
“Mr McShane describes how Mr MacLeod failed to settle, was not punctual, seemed to take no pride in his personal appearance. He agreed that sometimes he would appear unhappy and depressed. He agreed that this appearance and presentation would not have been accepted well by the service men and women around him nor would it have been accepted well by superiors.
This description of Mr MacLeod which appears in those pages is entirely consistent with a man who has developed depressive illness. It can be contrasted with the enthusiastic attitude that his wife describes prior to embarking aboard Hobart.”
96. No doubt the experiences of the applicant aboard Hobart were not only deeply disturbing, but also profoundly disappointing. The constant criticism must have affected his confidence and self-esteem.
97. This effect on his confidence is reflected in the report from Pearl Grinberg Psychologist, of 16 August 1995 it is noted:
“Feels experience on Hobart “shattered” his career. This was his first sea posting and he had been looking forward to it.”
98.The Tribunal refers to the following passage in Wiegand v Comcare [2002] FCA 1464 per Von Doussa J:
“In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled”.
99.By any objective test there may appear to be some exaggeration of certain events on this ship, for example the EOS bottles issue and rostering, however the applicant’s perceptions of these events is also relevant.
Medical History Following HMAS Hobart
100. On 25 July 1995 the applicant was posted to HMAS Kattabul for duty with 133 Signal Squadron, an army unit located at Moorebank in New South Wales.
101. There is mention in the evidence of the applicant playing music at night after work. This was to fulfil commitments to his father. The applicant had difficulties fulfilling those commitments.
102. On 10 August 1995 the applicant reported psychological symptoms of depression and was referred to a psychologist for counselling and stress management.
103. It is important to note that in the record of a referral dated 14 August 1995, the first record of the applicant receiving medical assistance it refers to “Stress related problems since being at sea …”. That is obviously a reference to his period aboard HMAS Hobart as up to that point in time it was the only ship he had served on.
104. The very next medical record dated 16 August 1995 also expressly refers to HMAS Hobart. Pearl Grinberg, Psychologist, reports:
“Seems his present unhappiness is due to his continued brooding about Hobart. Says he was overworked, got into trouble for falling asleep on job. Got little sleep. Publicly abused by WEO. Iain made an official complaint which he says went nowhere. He was told he had not worked hard enough and let down the side. Feels very hurt at this as he had ` worked like a dog’.
Feels experience on Hobart shattered his career, this was his first sea posting and he was looking forward to it. Now does not like to have anything to do with the Navy. In a way he is happier at Moorebank away from the Navy. Said it made him nervous coming to this appt having to visit a Navy establishment.
Says when he was on Hobart got very “tense”, “closed”. Would focus only on his work did not speak unless he had to, for 7 days.
Reports current feelings of anxiety and depression. Reports memory problems, trembling (Dr Dowsett told him this could be his thyroid), concentrating problems, can’t get motivated at work… Low confidence….”.
105. In a further record which is the next counselling session in August 1995 conducted by Pearl Grinberg there is once again reference to HMAS Hobart:
“Mainly thinking about Hobart and current unhappiness…”
“Did not do the suggested homework of writing down his feelings and experience on Hobart. Said he got so angry when he thought about it, he could not do it.”
106. These references to HMAS Hobart at the very outset of his medical treatment are important because they show that both Mr Sainsbury and Dr Sale were wrong in suggesting that there was no early reference in the medical records to the problems faced by the applicant when onboard HMAS Hobart.
107. Dr Sale said in his report of 8 September 2000:
“He first sought help during 1995 …. There was apparently no reference to his period of duty aboard HMAS Hobart.”
He went on to say:
‘In any event, the attribution of his difficulties to the period aboard HMAS Hobart seems to have been made retrospectively.”
108. In fairness to both Mr Sainsbury and Dr Sale they may not have sighted the notes by the psychologist before writing their reports. Mr Sainsbury may have only seen the report directed to Captain Pate of the 133 Signal Squadron at Moorebank. That report understandably concentrated on issues of interest and relevance to Captain Pate.
109. However this misunderstanding of a fundamental matter is of great significance as the reports of Mr Sainsbury and Dr Sale obviously had a major bearing on the decision of 30 October 2000 to terminate the applicant’s compensation.
110. The applicant was admitted to the Balmoral Naval Hospital on 14 August 1995 for the removal of an infected cyst. A report from the hospital dated 29 August 1995 notes “stress problems related to work”. A treatment summary refers to “anxiety reaction”.
111. Mrs Barbara Robinson, psychologist, in a minute dated 3 June 1996 noted “he reports feelings of depression and anxiety which have been with him on and off over the last year”.
112. On 5 June 1995 Dr Adam Hodgins refers to “depression” and said “He reports a depressed mood on and off for some time now and gradually getting worse” … “he reports normal mood in between times of depression” (T.20)
113. The applicant had postings to various naval establishments and again attempted sea duty on HMAS Sydney from November 1995 to March 1996. There was an incident on HMAS Sydney involving a female sailor. Again the applicant believed that he was treated unjustly following that incident. The Tribunal accepts that the incident did occur on HMAS Sydney again despite the fact that there is no written evidence before the Tribunal of any incident report.
114. In a handwritten report of a referral dated 5 August 1996 Dr Virgona, psychiatrist, states “… gives Hx of intermittent ‘depression’ over last 12/12”. He refers to “… when posted to Hobart last year”.
115. On 25 August 1996 Dr Virgona mentions in a note: “… can’t cope at work, exhausted, too many demands, can’t see ahead, no joy … main problems began – Hobart …” (T23)
116. On 5 September 1996 it is noted “… went to sea – felt persecuted/victimised (T23).
117. On 24 September 1996 a recommendation is noted “category seven for three months”. It also states that the applicant’s disability is “adjustment disorder with depressed mood” (T36).
118. On 26 September 1996 it is noted “during his twelve months on HMAS Hobart he experienced increasing anxiety and found himself unable to cope with the demands of the job” (T37). (The same remark is again noted at T42).
119. The applicant continued to suffer bouts of depression and anxiety during 1997. At T85 an “inpatient record/summary” states that “full diagnosis” is “major depression”. Dr Dowsett in an “interim report” refers to “anxiety, depression since 1995 …”.
120. A number of “medical surveys” were carried out. In a report of the Medical Board of Survey at T102 it reports the applicant’s disability as “major depression” and notes that it was “aggravated by naval service” (T102).
121. A Final Medical Survey of 29 March 1998 refers to “major depression” and “which renders you unfit for sea service (T105).
122. The applicant was discharged from the navy on 9 October 1998.
123. In a minute taken 3 November 1998 Dr C Luke, medical officer, in a very succinct and well expressed summary of the applicant’s medical history states:
“In summary, Mr MacLeod developed a severe depressive illness in 1995 whilst serving HMAS Hobart. This is a constitutional disorder occurring in a man with a predisposition to depression. The RAN was not the direct cause of Mr MacLeod’s depression, however, service at sea unmasked his condition and, therefore, is grounds for aggravation of his condition”. (T110)
124. On 9 February 1999 Dr Surinder Johl, psychiatrist, provided a report to a Commonwealth government agency which stated:
“Mr MacLeod joined the Navy in 1992 and apparently did fairly well until 1995 when, whilst on duty on HMAS Hobart, he ran into problems. While working on HMAS Hobart he felt he was picked on by his superior officers, subjected to abusive language, given unpleasant and extra duties and intimidated in a number of ways. He felt he suffered a sleep deprivation and as a result could not carry out his duties adequately. By the end of his five months tour he was depressed, anxious and very angry. He felt unsupported by friends, work colleagues and his superior officers. He became anxious, withdrew from others and could not cope” (T117)
He later said:
“My impression is that he has a history of chronic major depression which at the present time is in partial remission” (T119.
125. On 24 November 1999 the respondent accepted liability to pay compensation stating:
“On the basis of the available evidence I determine that you have suffered an acceleration of a disease to which your military service contributed in a material degree, namely chronic major depression”. (T120)
126. The applicant has not been in regular work since leaving the navy in 1998. He and his family then decided to move to Tasmania to take up residence in Ulverstone. The applicant continues to receive medical treatment for his condition in Tasmania from time to time.
127. On 9 February 2000 he was seen by Dr Max Jacobs, psychiatrist, at the Oldaker Street Clinic in Devonport. In Dr Jacob’s handwritten notes of that date he records references to HMAS Hobart. The applicant was diagnosed by Dr Jacobs as having “major depression”.
128. The applicant was admitted to The Hobart Clinic on 25 July 2000. The admission was arranged by Mrs MacLeod. In the admission notes it is recorded “first signs of depression emerged when working as electronic communication sailor onboard the HMAS Hobart aged 30 …”. The applicant was diagnosed at The Hobart Clinic as having a major depressive disorder. There is a reference in the discharge summary as follows:
“… his mood deteriorated whilst on HMAS Hobart when he felt he was targeted by his divisional officer for special treatment…”
129. Dr Jager, the consultant psychiatrist in charge, said in the discharge summary:
“He was discharged to the care of his general practitioner and psychologist. The focus of future attention should be on continuing treatment of his major depressive disorder and long term psychotherapy for treatment of his adolescent sexual abuse and feelings of anger and hostility stemming from childhood”.
130. He continued to see psychiatrists at the Oldaker Clinic in 2000 and beyond after being discharged from The Hobart Clinic. In the last entry of the records of the Oldaker Clinic Dr Max Jacobs recorded on 26 March 2002:
“Obsessional traits
Personality traits, ie dependency, negativity and dysthymia very prominent and predate navy service”
131. The applicant also consulted his general practitioner Dr Emmett on a number of occasions between February 2000 and June 2006 concerning a range of medical problems including his depression.
132. It can be seen from the applicant’s history that whereas there was no evidence of depression or medical treatment prior to his experiences on HMAS Hobart in contrast there is substantial evidence of ongoing depression and medical assistance since 1995 until the present time, but with various periods of remission along the way.
The Applicant’s Musical and Other Activities
133. Although, as has been mentioned, the applicant has not been engaged in regular work since his service in the navy, the evidence is that he has assisted his wife in her Ulverstone business, played music from time to time at various musical events, on occasions undertaken painting jobs, been involved in fishing activities including active membership of a fly fishing club, studied subjects at TAFE and university and other activities. The range of the applicant’s activities over the past two or three years have been well described in the respondent’s written submissions at pages 11-14 and were the subject of detailed cross-examination in the course of the hearing.
134. It should be mentioned that the applicant is a very accomplished piano accordionist. His father also played the same instrument and was particularly well known as a musician in Scotland.
135. It is argued on behalf of the respondent that the nature, range and frequency of his musical and other activities indicate that the applicant is not suffering depression and also that he is not incapacitated from work.
136. The Tribunal notes a telling comment from his treating psychiatrist Dr Max Jacobs of the Oldaker Street Clinic on 12 March 2004 “… encouraged him to focus on activities that lift his mood (eg music, study, painting, home, fishing)”.
137. Mrs MacLeod said in her oral evidence that she encouraged her husband to be involved in travelling to the mainland and going to Hobart to play music. She said:
“I encourage it because I think it is good for Iain to be doing things, and it is very good for me and the children to be away from him because, we love him dearly and we love home, but sometimes it is such a relief to have him out of the house. I think that if he didn’t go away and do things, you know, his depression would get worse and it really does affect our children, it really does affect me …”. (Transcript P217)
138. As far as the applicant’s involvement in the shop is concerned Mrs MacLeod said:
“He will come down during the week and have lunch with me, which we encourage because I want to see that he is OK and we want to chat about things, but if he looks after the shop for me it is never more than, you know, like an hour. I personally don’t rust him in my shop to run it properly when I am not there because he gets confused, he forgets where things are, he may not serve customs properly which is not good for the business and, you know, I have known him to give wrong change.” (Transcript p 215).
139. Dr Burke said in evidence that a person suffering a major depression could still at times participate in the kind of activities in which the applicant was involved. He said there can be “… rays of sunshine..” or certain periods when the condition of a person suffering a chronic major depression improves to the point where they can engage in such activities. He said:
“… it requires one accepting that, as he said, and I mentioned this earlier, there were rays of sunshine which came through from time to time and one would have to view those periods as being part of those rays of sunshine, or those activities as fitting in to those periods.” (Transcript P270)
140. Dr Sale doubted that a person who was significantly depressed could be engaged in these activities. He agreed that you can get some days when a depressed person can be involved in some activities. He said:
“Well, you can get that in people who are depressed. You can get occasional days, but they’re not things you can plan for, and some of these events he would have had to plan for. Depressed people find it very difficult to plan commitments for the future because they don’t know how they are going to be.”
141. It is not the intention of the Tribunal to relate all of the details of the applicants various activities. They were exhaustively analysed in the course of cross-examination. Nor is it intended to make reference to all of the relevant comments by Drs Burke and Sale. It is significant that despite being aware of the evidence of Mr MacLeod’s activities, Dr Sale is still of the opinion that the applicant is suffering a mental illness namely Dysthymic Disorder.
142. More will be said shortly about the opinions of Drs Burke and Sale and the issue of incapacity. However the Tribunal is satisfied that evidence of the applicant’s various activities is not inconsistent with his suffering a depressive illness and being partially incapacitated from work within the meaning of the Act. It is understandable that he should try to be actively involved in activities he enjoys. The Tribunal accepts that this was the advice of Dr Jacobs who was treating him.
143. The Tribunal will now consider in more detail the opinions of Drs, Burke, Sale and Jager who gave oral evidence at the hearing.
Medical Evidence
Dr Burke
144. Dr Burke is a very experienced psychiatrist who practices in Sydney. He was engaged on behalf of the applicant for medico legal purposes.
145. He examined the applicant for 2 hours on 4 October 2000, but has otherwise relied on telephone discussions with him. Dr Burke expressed the following opinion in a written report dated 24 October 2000:
“On the basis of his symptom picture and presentation at interview I consider Mr MacLeod is suffering from a Major Depression which has now become chronic and was precipitated by the events which he describes as causing him such distress while he was on HMAS.
The symptom picture which, in my opinion, justifies the diagnosis includes the following symptoms:
· Depression of suicidal intensity
· Insomnia
· Poor appetite
· Poor concentration and indecisiveness
· Lack of interest, including interest in sex
· A heavy, lethargic, slowed down feeling
I do not believe that he has “invented” the incidents which he describes as occurring while he was posted to HMAS Hobart although I would accept that he might have been loathe, as a junior seaman and a relatively new recruit, to make written complaints about eh Ship and its crew.
In short, I would accept the genuineness of his claim.
As far as I can ascertain he was well when he joined the Navy and in particular when he was posted to HMAS Hobart. It seems equally clear that he has been depressed since that posting.”
146. Despite rigorous cross-examination Dr Burke maintained that opinion.
147. Dr Burke agreed that the events on HMAS Hobart may have “brought out some underlying vulnerabilities in his personality” and added:
“… vulnerabilities which, to my knowledge, had not already appeared prior to this joining Hobart…”.
Dr Burke said:
“… I considered that his condition had been improving overall from time to time over he last few years, I think I’ve used – I quoted him as saying that there were rays of sunshine, periods of rays of sunshine shining through, or something of that nature, it would be consistent with an overall picture of a chronic major depression with periods of partial recovery, or partial remission along the way, periodically, at least three times, or whatever we’re talking about.” (Transcript p250)
148. When asked in cross-examination about the impact of the events on HMAS Hobart. Dr Burke said:
“They had a very profound impact on his psychological well-being.”
He added:
“… I think they have had a continuing impact …”. (Transcript p264)
149. Dr Burke was asked about a concert the applicant played at in Launceston on 16 February 2006, his appearance at which had been advertised some time beforehand.
150. Dr Burke said it was “somewhat surprising”. He said on that same issue:
“He told me that he was trying to take an optimistic view of what he was – what he would be able to do at any time, that being what he has been advised to do I gather particularly by the psychologist who had encouraged him to pursue positive thinking at all times, not to allow himself to drift back into thinking about Hobart …”. (Transcript P277).
151. Again explaining how a person suffering depression could be involved in activities. Dr Burke said:
“The usual picture is one of a patient being depressed most of the time to the point where they find it difficult to cope with the average activities of daily life, but where from time to time they may feel somewhat better and may be able to address those activities, particularly if they are receiving medication….” (Transcript p279)
Dr Sale
152. Dr Sale is also a very experienced psychiatrist practising in Tasmania. He was engaged by the respondent for medico-legal purposes. Dr Sale interviewed the applicant on several occasions and also had the opportunity to interview Mrs MacLeod. He provided four written reports.
153. In his initial written report of 8 September 2000 Dr Sale said:
“I have doubts as to whether major depressive illness is or has been the appropriate diagnosis in this particular case”.
He added:
“In my view, the more appropriate diagnosis would be that of a Dysthymic Disorder in a man who has some problematic traits.
I would not regard the events aboard HMAS Hobart as causal to his difficulties. It is more likely that his personality problems merely became more evidence during a tour of sea duty. In any event, the attribution of his difficulties to the period aboard HMAS Hobart seems to have been made retrospectively”. (T140)
154. As has already been explained the evidence of course is that HMAS Hobart featured very significantly in the early stages of the applicant’s treatment, a relatively short time after leaving HMAS Hobart.
155. As indicated Dr Sale expressed “doubts” about whether the applicant was suffering a major depressive illness. In his second report of 3 September 2001 he confirmed his diagnosis of dysthymic disorder and disagreed with Dr Burke’s diagnosis of major depressive disorder. He said, however, that:
“There is a very considerable overlap between the diagnostic criteria for dysthymic disorder and major depression.
The difference is mainly one of degree.
In a hierarchy of severity, adjustment disorder with depressive symptoms would generally be regarded as the mildest of the depressive conditions, dysthymic disorder as midway and major depression as the most severe”.
156. In his report of 29 April 2002 Dr Sale said Mr MacLeod was suffering from “… some form of chronic depressive disorder”. He added at page 5 of the report:
“In my view, his difficulties are more likely to arise out of issues such as his family background and a prior history of sexual abuse. In addition, the very strong family history of psychiatric disorder recorded in The Hobart Clinic notes suggest that there may also be some underlying genetic vulnerability”.
157. It is particularly significant that in his third report of 19 November 2003 Dr Sale changed his opinion to ‘major depression chronic’. He said:
“As Mr MacLeod presents today, he manifests a major depression, chronic. His level of function is reduced both within the family and for study. His capacity for participation in work is diminished. He appears to have deteriorated since I first saw him. His treatment arrangements are not optimal”.
He again expressed the view that the cause was not HMAS Hobart but ‘background matters’.
158. In cross-examination by Mr Brett, Dr Sale agreed that depression can “… progress up and down the scale of seriousness” (Transcript p290).
159. In his oral evidence Dr Sale reverted to his earlier opinion that the applicant was suffering a dysthymic disorder.
160. As to the cause of the illness Dr Sale said:
“… for me as a psychiatrist the most significant matter in this man’s life was the sexual abuse that he experienced from the age of 15. Sexual abuse, no matter what way you dress it up, is known to be a cause of significant psychiatric problems in adult life. And a lot about this man is consistent with the sort of things that can arise out of sexual abuse. That is periods of depression, periods or times when he seems to have difficulty controlling anger, and perhaps just not really succeeding at life. His life goes in fits and starts””. (Transcript P284).
161. When asked whether there was any significance in the suggestion that the officer on HMAS Hobart was “a clone” of the person who had sexually abused him as a teenager. Dr Sale said:
“Yes, indeed. That observation tends to make more sense of his difficulty in coping with being aboard HMAS Hobart, why he found it such a distressing experience. If it resonated with an earlier abuse; that the person who was largely responsible for giving him a bad time on Hobart resembled in some way the perpetrator of abuse, that is of great significance and would help explain why Hobart was a problem”. (Transcript P285-286)
162. Dr Sale agreed in cross-examination that the applicant became depressed as a result of his treatment on HMAS Hobart. He said:
“Yes, I think that what happened about Hobart is that there was an interaction between his very considerable vulnerabilities for reasons we have discussed and the particular environment of being on a ship at sea, facing difficult people. He just didn’t handle it. He became depressed. I mean I have no problem with that”. (Transcript P295).
163. Dr Sale maintains that the real cause of the applicant’s mental illness were factors other than his experiences in the navy, particularly the period of sexual abuse. However he made a most significant comment in answer to a pertinent question from Mr Brett:
Mr Brett : “With appropriate treatment ought he been able to return to how he was prior to going aboard HMAS Hobart?
Dr Sale : “The genie is to some extent out of the bottle, so getting it back quite to that state I suspect isn’t going to happen even with optimum treatment”.
Dr Jager
164. Dr Jager is a psychiatrist who formerly practised in Tasmania and now works in Melbourne. In 2000 he was a consultant psychiatrist at The Hobart Clinic when the applicant was admitted for treatment. He made a written statement which he affirmed in evidence and also gave oral evidence.
165. Dr Jager said in his witness statement that he believed the applicant had a personality dysfunction which was not caused by his employment in the navy.
166. He agreed in evidence that when he saw the applicant at The Hobart Clinic he diagnosed him as having a major depressive disorder (Transcript P379).
167. Dr Jager said that his present identification of personality disorder was “… on the basis of my, you know, fairly limited assessment of him”. He later said “people with personality dysfunction are much more prone to developing episodes of major depression”.
168. The applicant’s medical condition has been reasonably consistently described as some form of “depression” although the exact diagnosis has varied from time to time. Prior to his discharge from the navy he was found by the Board of Final Medical Survey to be suffering “major depression”. His employer later accepted liability for compensation for the condition of “chronic major depression”. More recently he was initially diagnosed at the Oldaker Street Clinic as suffering “chronic depression” and at The Hobart Clinic with “major depressive disorder. Dr Burke has consistently believed he is suffering “a major depression”. Dr Sale’s view has varied but in one report he expressed the opinion that the applicant was indeed suffering “major depression chronic”. His latest view is that the condition is really dysthymic disorder but acknowledges depression “can go up and down the scale”.
169. After carefully considering all of the evidence the Tribunal is satisfied that as at the 30 October 2000 the applicant was suffering “major depression” being the condition for which liability was originally accepted by his employer. The Tribunal is further satisfied that the applicant continues to suffer from that condition.
Conclusion
170. The applicant has suffered major depression or an aggravation of that condition since 1995 and continues to so suffer. That condition is plainly an ailment within the meaning of the definition of “disease” in the Act.
171. I use the term “aggravation” advisedly. The original determination in 1999 referred to “acceleration”. Some medical reports mention “aggravation”, including reports from navy doctors. The Act defines “aggravation” to include acceleration or recurrence. The interesting point here is that there is no evidence that the applicant suffered any ailment prior to HMAS Hobart other than a predisposition to suffering depression. The important fact is that from that point onwards he suffered an ailment however it is described. His condition satisfies the definition of “disease” in the Act so long as it was contributed to in a material degree by the applicant’s employment.
172. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 the Full Federal Court discussed the use of the word “material” for the purposes of the 1971 Act and said:
“The use of the word “material” in conjunction with the words “contributing factor” in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal condition must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small”. (at 26 FCR 323).
173. In Suters v Australian Postal Corporation (1992) 28 ALD 320 Ryan J commented:
“Although it is true that Treloar’s case was expressly limited to a consideration of the 1971 Act, in which the word “material” did not appear, the case none the less contains a valuable exposition of the meaning to that word to which courts and tribunals are entitled to have regard when considering legislation containing it”. (At 28 ALD 331).
174. However more recently the Full Court of the Federal Court of Australia in Comcare v Canute [2005} FCAFC 262 considered the meaning of the words “employment contributed in a material degree”. The Court referred to the Second Reading Speech to the Commonwealth Employees Rehabilitation and Compensation Bill 1998 which became the Act. The Minister for Social Security who was responsible for the Bill said :
“Under the existing Act an employee was required to establish only that his or her employment was a contributing factor in the contraction of a disease. This test does not adequately reflect the rights and obligations of the Commonwealth and its employees in relation to work-related disease and frequently results in the Commonwealth being liable to pay compensation for diseases which have little, if any, connection with employment. This Bill seeks to remedy that situation by requiring an employee to show that his or her employment contributed in a material degree to the contraction of the disease. The Government believes that this is a test which is firm but fair and which properly reflects the balance between the interests of the Commonwealth as employer and its employees. An employee will not be required to show that his or her employment caused the disease, or even that it was the most important factor in the contraction of the disease. It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged”.
French and Stone JJ said (at paragraph 68)
“On this basis, the observations of the Full Court in Treloar at 323 that the relevant causal connection must be established on the balance of probabilities and not left in the area of possibility of conjecture are not controversial. Equally, it is plain that the present legislation was not intended to require that an employee demonstrate that their employment caused the disease or that it was the most important factor. It would also appear that the imposition of a ‘but for’ test remains inappropriate. Having said this, the changes brought about by the enactment of the SRC Act were intended to require that the contribution be ‘more than a mere contributing factor’ and, as such, the comments of the Court in Treloar must be assessed in this light. Content must be given to the word ‘material’ contained in the definition of ‘disease’ in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded. However, it is not necessary for present purposes to consider the proper meaning of ‘material’ and nothing more need to said about this issue”.
175. It is plain, on the evidence that the applicant had a fragile personality and a predisposition to suffering depression. He had not suffered a depressive illness prior to serving on HMAS Hobart. As a result of his particular vulnerabilities he wasn’t able to cope with the verbal abuse, criticism and mistreatment he was subjected to whilst on HMAS Hobart.
As Von Doussa J said in Commonwealth v Smith (1989) 18 ALD 226:
“The legal concept of causation when applied to the field of personal injury takes the person injured as it finds him, with all his predispositions as susceptibilities, whatever they may be”.
176. The events on HMAS Hobart do not have to be the sole cause of the ailment or its aggravation or even the major cause. There may be a number of contributing factors. It is sufficient if the incident contributed in a material degree. See Wiegand v Comcare (op. cit.)
177. The Tribunal concludes that the events on HMAS Hobart were of genuine significance and import in bringing on the applicant’s major depression and, in the Tribunal’s view, satisfy the test of “material contribution” to his ailment or its aggravation. This causal connection with his employment was real and not speculative. It is established to the Tribunal’s satisfaction.
178. I again mention that the decision to make the “cease effects” determination of 20October 2000 was at least in part based on a mistaken belief by Mr Sainsbury and Dr Sale that the applicant had not referred to HMAS Hobart when he first took ill in 1995. The psychologist’s notes reveal that HMAS Hobart was a major cause of concern to the applicant from the commencement of his medical treatment.
179. As indicated above the Tribunal further finds that the effects of the applicant’s experiences on HMAS Hobart continue to this day. Once a person is affected in this way it is likely the effect will not entirely disappear. This is established on the medical evidence. Dr Sale acknowledged that once “the genie is out of the bottle” it is unlikely that the person can be returned to his earlier state of health. This man’s mental health was damaged by his experiences on HMAS Hobart. Another person with a different constitution may not have been but because of his fragility the applicant was. The Tribunal is satisfied that some of the damage remains to this day and continues to affect him.
180. Reference has been made to the applicant’s failure to call certain witnesses. It is suggested the rule in Jones and Dunkel should apply in this application. Any application of this rule must be considered in light of the reality that the proceedings are inquisitorial in nature. The Tribunal can, in circumstances where it recognises a need for further evidence on a particular matter, itself summons a witness to attend and give evidence. See Bessie v Australian Postal Corporation 2000 60 ALD 529 at 537 and Jones v Dunkel (1959) 101 CLR 298.
181. There was particular reference to the applicant’s failure to call “any of his naval friends”. However there is evidence before the Tribunal that Mr MacLeod made a substantial, but in the main unsuccessful, effort to locate people who had served with him on both HMAS Hobart and HMAS Sydney. The Tribunal refers to Mr MacLeod’s witness statement which he affirmed in evidence as accurate (A1).
182. As far as Dr Jacobs, a psychologist and Dr Emmett, a general practitioner, are concerned the Tribunal has had the advantage of seeing their medical records. There is therefore not a void in the evidence as far as they are concerned. Indeed the records from the Oldaker Street Clinic include expressions of opinion by Dr Jacobs. Some of those opinions do not assist the applicant. The Tribunal is of the view that, in all the circumstances of this application, no significant adverse inference should be drawn from the failure to call those witnesses or indeed other witnesses who may have been called by the applicant or indeed by the respondent.
183. It has, of course, been held that the rule in Jones and Dunkel can apply to proceedings in this Tribunal but in my view this is not a case where the rule can be readily applied. No adverse inferences, reasonably drawn, would have any influence on the outcome of this application.
184. The Tribunal has, of course, given careful consideration to each of the matters raised by Mr Morgan in his oral and written submissions. Those matters have relevance but some are not, in the Tribunal’s view, central issues. Many of the points emphasise conflict and inconsistencies in the evidence, particularly the applicant’s accounts of various incidents and, as well, Mrs MacLeod’s account. The Tribunal has given its considered assessment of the credibility of witnesses and has highlighted the significance of the applicant’s mental health in making findings as to his credibility.
Incapacity
185. As far as incapacity for work is concerned the Tribunal is satisfied that the applicant has continued to be incapacitated from 30 October 2000 to the present time. There is however some evidence that the symptoms of the applicant’s depressive illness have eased over recent years (see for example the first page of Dr Burke’s report of 7 February 2006). This was also confirmed by the applicant himself. In the Tribunal’s view the applicant could certainly not return to the kind of work he was doing prior to his “injury” or any work of a similar kind.
186. The applicant has shown some limited capacity to undertake part-time work including some shop work, painting jobs and also playing music professionally from time to time.
187. The Tribunal however concludes that since 30 October 2000 the applicant has remained, and continues to remain, partially incapacitated for work within the meaning of s4(9)(b) of the Act. The evidence before the Tribunal was insufficient to enable a more precise finding to be made as to the actual level of capacity for part-time work.
188. The Tribunal finds that the applicant has continued, since 30 October 2000, to suffer an “incapacity for work” as a result of his “injury” sustained on or about 1 May 1995. The respondent therefore remains liable under s14(1) of the Act to pay compensation to the applicant in accordance with the provisions of the Act.
Decision
The decision under review is set aside and the matter remitted to the respondent with the following directions:
(a) The respondent is liable to continue to pay compensation to the applicant on and from 30 October 2000 in accordance with the provisions of the Act in respect of an injury namely major depression suffered by the applicant on or about 1 May 1995.(b) As a result of the said injury the applicant has been incapacitated for work within the meaning of s4(9)(b) of the Act on and from 30 October 2000. (c) The amount of compensation is to be assessed.
Costs
189. This decision is one to which s67(9) of the Act applies. Therefore it appears that the applicant is entitled to costs. I will however hear counsel further as to costs if an application is made within 14 days. If no application is made within that time I will order that the respondent pays the applicant’s costs of these proceedings as agreed or taxed and that order will be incorporated in this decision.
I certify that the 189 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 8, 9, 24 February, 29 March, 19 May 2006
Date of Decision 31 July 2006
Counsel for the Applicant Mr M Brett
Solicitor for the Applicant Mr M Walsh, Walsh Day Williams
Counsel for the Respondent Mr B Morgan
Solicitor for the Respondent Mr D Wilson, Australian Government Solicitor
Key Legal Topics
Areas of Law
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Compensation Law
Legal Concepts
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Causation
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Compensatory Damages
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Incapacity
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Judicial Review
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Statutory Interpretation
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