Mewett v Commonwealth of Australia

[2003] FCA 808

FEDERAL COURT OF AUSTRALIA

Mewett v Commonwealth of Australia [2003] FCA 808

ROMANA JANE MEWETT v COMMONWEALTH OF AUSTRALIA

NG 376 of 1994

WHITLAM J

1 AUGUST 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 376 of 1994

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:	ROMANA JANE MEWETT APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	1 AUGUST 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        Judgment be entered for the respondent with costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 376 of 1994

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:	ROMANA JANE MEWETT APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT

JUDGE:	WHITLAM J
DATE:	1 AUGUST 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an action for damages for negligence and breach of duty.  It is brought against the respondent (‘the Commonwealth’) by a former sailor in the Royal Australian Navy (‘RAN’) and arises out of an incident on 31 August 1979.  The Commonwealth admits that it breached the duty of care it owed the applicant, but it does not admit that the applicant suffered any damage as a result of its breach.  The so-called gist of negligence is thus in issue.

2. An unusual feature of this case is that the applicant, who was born a male and named Robert John Mewett, now dresses and lives as a woman and uses the name Romana Jane Mewett.  The applicant has also undergone what is popularly known as a ‘sex change’ operation.  Nonetheless, the applicant subsequently married a woman called Valmai Margaret Stevens.  Although this woman now uses the surname Mewett, I shall refer to her as Ms Stevens in order to distinguish her from the applicant’s first wife.  So far as the applicant is concerned, whilst it may be confusing having regard to the applicant’s appearance and presentation at various stages of life, I will use throughout these reasons the pronouns ‘she’ and ‘her’ in relation to the applicant. 

   Background

3. The applicant was born on 14 December 1955 in England in the town of Torquay, which is situated in a part of the county of Devon known as the English Riviera.  The great seaport of Plymouth and the Royal Naval College at Dartmouth lie farther to the east in the same county.  After attending a local school, the applicant joined the Royal Navy (‘RN’) on 7 June 1971.  Her initial service involved basic training at Shotley in Suffolk followed by training as a radio electrical mechanic at Fareham in southern Hampshire.  The applicant then served on the aircraft carrier HMS Ark Royal from 1 October 1972 until September 1973 when she went to the Devonport naval base in Plymouth.  In February 1974 she was posted overseas to the RN communications centre in Mauritius where she served for one year.  The applicant then returned to Dartmouth for four and a half months before commencing service on 1 August 1975 aboard the Leander class frigate HMS Ajax.

4. In November 1975 Ajax made a four-day visit to the port of Fremantle in Western Australia.  During that visit the applicant met in Perth a nineteen-year old Australian woman, Shirley June Capewell.  (It will avoid confusion if I simply refer to this woman as Shirley.)  On 22 December 1975 the applicant returned to Perth where she married Shirley on 31 December 1975.  Three days later the applicant left Perth to rejoin Ajax.  Shirley followed the applicant to England where they were reunited on 14 April 1976.  Their first child, a daughter Julie, was born on 2 March 1977.

5. The applicant decided to migrate to Australia by joining the RAN.  On 21 November 1977 Shirley and Julie left England to travel ahead of the applicant to Australia.  The applicant was discharged from the RN on 26 February 1978.  The next day she joined the RAN in London with the rank of able seaman.  Her job category was electrical technical communications (‘ETC’).  Although her designated home port was Perth/Fremantle, the applicant flew directly to Melbourne and commenced training at the depot HMAS Cerberus on Western Port Bay in Victoria.  Shirley and Julie joined her there on 17 March 1978.

6. Following her training the applicant was posted to Sydney in February 1979 (HMAS Kimbla), to Perth in February 1980 (HMAS Moresby) and to Canberra in August 1981 (HMAS Harman).  In September 1983 she was posted to Sydney (HMAS Nirimba) for advanced ETC training.  Shirley moved with the applicant on these postings, and during this period of service they had three sons: Alan (born 2 November 1979), Jason (born 7 January 1981) and Damian (born 15 October 1983).  The applicant was promoted to the rank of leading seaman on 9 April 1981.

7. In September 1984 the applicant was posted for sea service aboard HMAS Perth, which was based in Sydney.   During this service Shirley and the children went to live in Perth, whilst the applicant stayed on the ship when it was in port in Sydney.  The applicant was promoted to petty officer on 31 July 1986.

8. The applicant was posted to Darwin in January 1987 (HMAS Coonawarra).  The family joined her there.  They returned to Perth at the end of 1989, and the applicant was posted to Sydney (HMAS Hobart) in February 1990.  Events leading to the applicant’s discharge from the RAN commenced soon after.  Those events are dealt with in detail below.  However, key dates may be mentioned at this stage. 

9. In July 1990 the applicant was posted to HMAS Stirling, which is a base located on Garden Island facing Cockburn Sound south of Perth.  The applicant and Shirley separated in September 1990, and by 1991 the applicant and Ms Stevens were living together in a de facto marriage relationship.  In March 1992 the applicant was posted to Sydney (HMAS Kuttabul).  Ms Stevens secured a job transfer to Sydney and came with her.  In September 1992 the applicant went on sick leave until she was discharged from the RAN as medically unfit on 15 January 1993.  The applicant underwent gender reassignment surgery in October 1994.  In January 1995 she and Shirley were divorced, and the next month she married Ms Stevens.

   The Kimbla Incident

10. Kimbla was an oceanographic research ship that had previously been a boom working vessel.  The incident that is the subject of this action occurred on 31 August 1979.  The basic facts appear from RAN documents in evidence.  The vessel cast off from Station Pier, Melbourne at 6.00am.  Its commanding officer aimed to transit the narrow entrance to Port Phillip Bay known as The Rip one hour before low water.  In the event, the ship crossed The Rip only forty minutes before low water in conditions where a strong ebb tide was opposed by south-westerly winds.  As the Kimbla entered The Rip at about 10.15am waves began to break over the bow and run along the deck.  At about 10.20am the sea state worsened dramatically.  A larger than usual wave hit the Kimbla causing a heavy list to port.  The ship did not recover from this list until after a series of large waves passed and during this period the sea sluiced down the port side.  Deck cargo broke loose and some sailors were injured whilst attempting to secure the cargo.  Water entered below spaces.  At about 10.25am a senior sailor, Chief Petty Officer Jackson, was on the upper deck closing vent flaps when he was engulfed by a wave and washed overboard.  One minute later Jackson was seen floating on the port side face down surrounded by blood.  He was then seen to disappear below the water.  His body was never recovered.

11. According to the commanding officer’s report the water ingress caused an electrical short and a loss of power.  The vessel was without external communications until about 10.50am.  A board of inquiry also reported that the boilers blacked out for a relatively short period because of water in the fuel.  The board considered that the state of Kimbla’s ‘watertight integrity’ was unsatisfactory causing Jackson to put his life in danger whilst closing the vent flaps.  The board also commented that it was fortuitous that the boilers were not more badly affected.

12. Kimbla left the search area at 1.30 pm.  It proceeded to Western Port where four injured personnel were landed and admitted to the hospital at HMAS Cerberus.  At 5.15pm the ship weighed anchor and proceeded to sea for the return journey to Sydney.

13. The applicant gave evidence that she was on special sea duty in the wheelhouse at the time of the incident.  She did not witness Jackson being swept overboard or see his body in the water.  The wheelhouse was undamaged and she was uninjured.  The applicant said that she thought the ship would not right itself and that ‘we were going to die’.  The applicant did not give evidence at the board of inquiry held in Sydney on 3 and 4 September 1979.  She said that she did attend a memorial service for Jackson in Sydney and recalled Jackson’s wife being very distraught.

14. The applicant claims to have persistently re-experienced this incident since soon after it occurred.  Yet she never discussed such symptoms with anyone before speaking to Ms Stevens on 28 August 1990, almost exactly eleven years after the event.  It is instructive, therefore, to look at the applicant’s medical history.

    Naval Records of Medical Treatment up to August 1990

15. The RN records may not be complete.  They commence in September 1971 with the applicant’s admission for five nights to the sick quarters at Shotley with tonsillitis.  At Fareham she was treated for herpes, and on Ark Royal for a rash on her hands and an ingrown toenail on her right foot.  In Mauritius the applicant complained of a ‘chesty cold and eustachian catarrh’ and of a problem with her right knee.  The most interesting note is of an attendance at the sick bay on Ajax.  This occurred on 27 August 1976.  It records the applicant as having been brought back from ashore in a van, lying on the floor doubled up complaining of pain in the left side of her chest.  After being taken to the sick bay, the applicant was prevented from hyperventilating and the pain settled within minutes.  She was diagnosed as suffering from hysteria.  In cross-examination, the applicant recalled this episode and the diagnosis.  She said she had started to hyperventilate at a dinner party.  Also, whilst serving on Ajax, the applicant attended on 25 November 1976 at the sick bay in the port barracks complaining of having vomited three times that day after having suffered from diarrhoea earlier that week.

16. It appears that the earliest records of the applicant’s injuries requiring medical treatment in the RAN relate to a grazed left elbow at Cerberus  on 17 November 1978 and some bruising aboard Kimbla on 8 August 1979.  On each occasion the applicant was returned to duty.  However, on 24 November 1980, whilst serving on Moresby, she reported to sick bay complaining of myalgia, headaches and dysuria with low central abdominal pain, which she described as a dull ache.  Interestingly, it was noted that the applicant’s wife was pregnant and that the applicant had the same symptoms during the last pregnancy in 1979.  A previous medical history of tonsillitis in September 1980 was also noted.  Although, a diagnosis of cystitis was made by the medical officer and the applicant was advised to drink lots of fluids and prescribed a course of antibiotics, pathology tests of specimen revealed no growth of cultures.

17. At Harman the applicant complained of chest pain related to stress in February 1982.  The chest pain was investigated by a cardiologist who reported a normal electrocardiogram.  However, one year later in February 1983 the applicant returned complaining of stress problems over the intervening period.  It was noted that she was not sleeping, was angry over small things and was under domestic stress with three children.  There were several attendances that month in the course of which it was reported that the applicant’s wife had left, that she and the children were planning to return to Perth, that the children had been placed in a refuge for a week and that the wife had returned temporarily.  The applicant was diagnosed as suffering from anxiety and depression.  She was prescribed antidepressants and tranquillisers.  Later, on 20 June 1983, the same medical officer, Dr Eather, examined the applicant for the purposes of re-enlistment and reported that her ‘stress reaction associated with marital difficulties has resolved without difficulties’.

18. On 18 November 1983 the applicant was involved in a motor vehicle accident en route to work at Nirimba when the bike she was riding was struck by a van.  She was taken by ambulance to Blacktown District Hospital where she was admitted to casualty for observation.  The applicant suffered a laceration of the head, left ankle and right elbow.  There was no loss of consciousness.  She was given no stitches and was discharged the same day.  The applicant was placed on light duty for seven days.

19. In January 1984 the applicant and Shirley saw the medical staff at Nirimba about their desire for the applicant to have a vasectomy.  It was noted that the couple had been considering such an operation ‘since before birth of second last child’.  Permission was given.  After a ‘cooling off’ period the applicant was admitted for three days to the hospital at the RAAF base at Richmond where a vasectomy was performed on 1 May 1984.

20. Early on the morning of 23 August 1985 the applicant was admitted to the Balmoral Naval Hospital in Sydney.  The discharge summary noted that she had been out drinking and that, whilst urinating on return to her ship, collapsed and banged her head.  Her blood alcohol content eight hours after admission was 0.05g/100 ml.  A diagnosis was made of alcoholic intoxication and mild head injury.  The applicant was discharged on 26 August 1985 after a mild headache and abdominal pain had settled.

21. The applicant was seen by a visiting medical officer in December 1985 for ‘a 15 year history of chronic tonsillitis’.  The applicant was subsequently admitted to Balmoral Naval Hospital on 24 February 1986 where she underwent tonsillectomy on 25 February 1986.  She was discharged to convalescent leave on 3 March 1986.  At review on 10 March 1986 the applicant was discharged to duty after fourteen days of being ‘ineffective for work’.

22. On 11 April 1986 the applicant was admitted to Balmoral Naval Hospital after allegedly being assaulted in a hotel bar in Woolloomooloo.  She sustained a puncture wound on the left side of the lower lip and a right-sided peri-orbital haematoma.  She also had diplopia secondary to the peri-orbital swelling, but the ophthalmological and neurological examination was otherwise normal.  The next day she was much improved and the diplopia was no longer present.  The applicant was discharged to duty on 13 April 1986.

23. On the evening of 5 July 1986 aboard Perth the applicant reported to the sick bay that she suffered contusions to three fingers on her right hand when they caught on the latch of a closing door.  There was no apparent fracture.  The applicant was treated with ice, compression and elevation and returned to duty.

24. The applicant underwent a medical examination in Darwin for re-enlistment purposes on 14 May 1987.  Dr Duncan assessed her as psychiatrically normal.  A benign skin cancer was excised from the applicant’s back.  Dr Duncan examined the applicant again for re-enlistment purposes on 3 February 1989 and once more assessed her psychiatric condition as normal.  On 7 February 1990, en route to the posting aboard Hobart, the applicant was admitted to the base hospital at HMAS Stirling for two days complaining of ‘low back pain which developed suddenly on rising from a chair’.  No abnormality was seen in an x-ray of the lumbar spine.  She was referred for physiotherapy, where she also complained of right knee pain.  The applicant was discharged on 9 February 1990 feeling ‘100% better’ with a full range of movement in her back and right knee.

25. On 16 March 1990 the applicant was admitted to the Concord Repatriation General Hospital in Sydney.  She was seen there by Dr Danielle Vandenberg, a registrar in psychiatry.  Later that day Dr Vandenberg sent a discharge report to the medical officer at HMAS Kuttabul.  This was transcribed in the medical records of the applicant’s medical history as follows:

    ‘... re Mr Robert Mewett D.O.B. 14.12.55, who was sent over for urgent psychiatric assessment by Dr O'Reilly. Last night Mr Mewett threatened to commit suicide by jumping off the 5th floor balconey of his hotel.

    He has no past psychiatric history. He has been feeling intermittently depress and anxious over the last 6/12. This has been in response to numerous recent stresses. He is currently experiencing difficulties in getting promoted in the Navy, while feeling he is too work-oriented. He is based in Sydney while his wife and 4 children are in W.A.  He is finding this a very difficult situation as his marriage is already very strained. His wife has recently been hospitalised for depression and the two younger children have epilepsy and hyperactivity.

    The decision to commit suicide last nigh was impulsive and not pre-planned. He had drunk at least 5 cans of beer (although described his usual intake of alcohol as minimal and takes not drugs of any kind), become involved in a fight at a pub and returned to his hotel room alone. He started to ruminate about his problems, felt very depressed and seriously thought about jumping. However, he rang his wife in W.A. who then rang Navy personnel who then went and got Mr Mewett. He felt depressed and tense this morning, but on interview today felt more settled. He feels relieved he did not make the attempt and denied feeling currently suicidal. There was no history of any psychotic phenomena and today he was lucid and not psychotic. Today his affect was depressed but responsive today. There was no history of any biological depressive symptoms eg anorexia or anhedonia except for insomnia.

    My impression is that this man is most likely to have an Adjustment Reaction with Depressed Mood. He does not want admission and there is no justification for making him an involuntary patient.

    He has already arranged to go back to W.A. for two weeks this evening. Could the Navy please advise his wife of this and arrange for appropriate psychiatric folllowup which Mr Mewett has requested himself.'

26. The substance of the history that I have chronicled thus far was put to the applicant in the course of her evidence and accepted by her.  The applicant explained that on the night of 15 March 1990 she never left her hotel room but was kept under a ‘sort of house arrest’ until taken to hospital. 

27. The applicant was given compassionate leave and went to visit her family in Perth.  Whilst there, she was seen on 20 March 1990 for review of her psychiatric condition by Dr T A Dillon, a medical officer at HMAS Stirling, who noted:

    ‘Member appears content, after family contact and has positive goals towards both his and his family’s future.  No suicidal thoughts.  Has a posting to Moresby in Aug 90.’

28. On 10 May 1990 the applicant’s divisional officer on Hobart reported on her performance as follows:

    ‘Petty Officer Mewett has proved himself quite capable of handling the responsibilities of a CPO of a section.  However there has been a lack of continuity.  This has been attributed to recent family problems associated with the fact his wife is in WA.  PO Mewett will soon be posted to HMAS Stirling where he will be loaned for courses and then posted to HMAS Moresby where it is envisaged he will perform well the duties required of him.’

    Medical Examinations August 1990

29. The applicant was posted to Moresby on 27 July 1990, where she met Ms Stevens for the first time on 10 August 1990.  Ms Stevens was employed by the Department of Defence as the senior psychologist for the RAN in Western Australia.  Because of the incident on 15 March 1990 there was a concern regarding the applicant’s suitability for sea service.  The applicant apparently told Ms Stevens of recent domestic problems she had experienced, and Ms Stevens referred her to Dr Dillon.  On 17 August 1990 Dr Dillon noted that the applicant’s wife had medical problems with which the chaplain was assisting and that the wife was ‘having blackouts and acting irrationally’ and ‘verbally abusing the children and husband’.  Dr Dillon arranged for the applicant to see Dr Terry Gidley, a psychiatrist at the Repatriation General Hospital Hollywood in Perth on 22 August 1990.  In his referral letter, Dr Dillon said that as a result of the wife’s irrational behaviour, the applicant had had ‘further suicidal thoughts’, though these appeared to have subsequently resolved with the intervention of the psychologist and the chaplain.  Dr Dillon told Dr Gidley that he believed the applicant would be fit to sail in mid-September.  However, the applicant did not keep the appointment with Dr Gidley because in the meantime she was required as a result of unforeseen events for sea service aboard Moresby. 

1. After the Moresby sailed, Shirley contacted Ms Stevens asking that she come and see her.  Ms Stevens initially resisted but eventually relented after she received a letter from the applicant’s daughter Julie suggesting ‘sexual problems’.  When she visited the applicant’s home, Ms Stevens was shown cross-dressing paraphernalia and a cassette of what was said to be a video depicting incest.  Ms Stevens returned to Stirling and arranged for the chaplain, Brian Rayner, to attend the applicant’s house.  The chaplain apparently also considered the situation to be alarming.  Ms Stevens said that the applicant’s work required a security clearance and there was a possibility of blackmail.  Accordingly a decision was made to remove the applicant from duty aboard Moresby and bring her back to Stirling.

2. On 26 August 1990 the applicant was medically evacuated from Moresby and admitted to the sick quarters at Stirling.  The next day Dr Dillon wrote a fresh referral to Dr Gidley:

   ‘1.Thank you for seeing this 34 year old Senior Sailor, who was medically evacuated from HMAS MORESBY on the advice of the Clinical Psychologist and Chaplain, 27 AUG 90.  The problems revolve around aberrant sexual behaviour and family tension.

   2.The member was sexually assaulted, by a male, at the age of eleven, in the U.K.  (He has now been in Australia for twelve years.)  Since the time of the assault, the member has been involved with transvestism, practising at home and at times, with his wife.  The member has also collected pornographic material, which his wife does not enjoy.

   3.The member’s wife is keen for her husband to leave the RAN.  She is currently under the care of a Psychiatrist (? Dr Lord) and is awaiting medical results.  The member informs me the wife was “raped” as a young girl.

   4.The member’s 9 year old son was allegedly sexually assaulted by a male relative recently.

   5.The member has physically assaulted his wife, after verbal provocation, usually revolving threats that the wife would inform the Navy of the member’s behaviour.’

3. Ms Stevens also saw the applicant on 27 August 1990, as did Shirley.  Later that day Julie telephoned Ms Stevens to say that Shirley was attempting to commit suicide.  Shirley’s admission to Fremantle Hospital was arranged, and the applicant was permitted to go home for the night.  On 28 August 1990 Ms Stevens said that Fremantle Hospital ‘wanted to get rid of Shirley’ because ‘they had no beds whatsoever’.  However, someone had to go home with Shirley.  So Ms Stevens took the applicant to pick up Shirley and they all returned to the applicant’s residence where Ms Stevens spent the night.  In a report to the commanding officer at Stirling dated 20 September 1990, Ms Stevens said that on that evening the applicant enquired why ‘everything has gone wrong since 1979’ and that, after ‘further delving’, she diagnosed the applicant as suffering from post traumatic stress disorder (‘PTSD’).

4. Dr Gidley saw the applicant on 29 August 1990.  (She was taken to the appointment by Ms Stevens.)  Afterwards Dr Gidley reported to Dr Dillon as follows:

   ‘P.O. Mewett aged 35 presents with a long standing history of cross dressing and also with a fairly long history of marital difficulties.  In addition after an accident on HMAS Kimbla 10 years ago, in which a young sailor was killed, P.O. Mewett has shown lasting distress and a preoccupation with that event.  Recent parasuicidal behaviour has arisen as a consequence of his various stress experiences.

   He is angry, currently, at being removed from his ship summarily and without explanation, although he now seems to understand the Navy’s concern that his medical condition might impact on his security risk status.  He certainly seems willing to cooperate with ongoing treatment.

   His psychosexual problems relate to his early life where he was assaulted by a male teacher and where he simultaneously felt rejected by his mother.  These circumstances could have certainly affected the development of his sexual identity which in turn has had an impact on ongoing sexual behaviour.

   There is no doubt that his marriage has been a source of ongoing conflict.  His wife would appear to have problems in her own right, for which she is now consulting a psychiatrist.  He also describes her as being hostile towards his career in the Navy and particularly the requirement that he spends long periods away from home and their 4 children.

   In the past it has never been arranged for him to have psychiatric or psychological treatment, so it may be fortuitous in a sense that issues have come to a head now.  He appears to want to preserve his career in the Navy, so this situation should serve as an additional motivation for therapy.

   On examination  A neatly dressed, fit looking man, who was reasonably composed during the interview.  A good historian.  Anxiety was evident particularly when he discussed the accident on HMAS Kimbla.  There was no obvious suicidal ideation.  He was quite open when he talked about his sexual behaviour.  He impressed as being intelligent and also a fairly resourceful personality with obsessional traits.  He had good insight.

   Diagnosis  Chronic post traumatic stress disorder.  Developmental sexual problems and current marital difficulties.

   With ongoing treatment there are reasonable possibilities of him being able to continue to provide effective service to the Navy.  It is a good idea that he is temporarily reclassified so as to facilitate psychiatric and psychological treatment.

   Valmai Stevens is prepared to see him for post traumatic counselling while he also attends me for further exploration of the dynamics of his cross dressing behaviour.  Family tensions may ease as a result of his wife’s psychiatric treatment at Fremantle Hospital.’

5. The applicant was discharged from the sick quarters on 30 August 1990.  However, she was given no duties in her ETC job category, but instead went to work with Ms Stevens in the Psychology Section at Stirling.

   Cross-dressing, Sexual Abuse and Domestic Violence

6. In the years since these modest histories were recorded by Dr Dillon and Dr Gidley, the applicant has told her life story over and over again, in court and to many doctors and other health professionals.  The subsequent accounts of events in her life up to August 1990 are not entirely consistent, yet they provided a fruitful source of cross-examination.  The evidence given by the applicant about her early life was unsatisfactory.  She was petulant, and she frequently contradicted what she had earlier said.  The applicant does accept, however, that Dr Gidley was the first doctor to whom she mentioned Kimbla during her RAN service.  The ‘lasting distress’ and ‘preoccupation’ recorded by Dr Gidley may be put to one side for the moment.  The picture that emerged eventually of what Dr Dillon called ‘aberrant sexual behaviour and family tension’ is clear enough. 

7. The applicant had cross-dressed since the age of about eleven.  She wore her mother’s clothes and found such dressing sexually stimulating.  She would masturbate whilst so dressed.  This behaviour continued throughout the period she was married.  Shirley knew of the cross-dressing and did not like it.

8. As a child, the applicant used to sing and act.  When she was fourteen, she met at the local operatic and dramatic society a man in his early thirties.  (The man’s surname appears in the evidence, but I shall refer to him simply by his given name John.)  The applicant and John commenced a homosexual relationship.  The applicant said that there was no anal intercourse.  Their activities involved mutual masturbation.  John performed fellatio on the applicant.  She cross-dressed during these activities.  The relationship with John continued after marriage to Shirley and was pursued after Shirley returned to Australia in 1977.  The applicant re-established contact with John in 1995 when she returned to live in Torquay.

9. Whatever may have been the state of Shirley’s mentation in August 1990, the marriage between the two of them was tempestuous and violent from the time they commenced to live together in 1976.  The applicant discovered that Shirley was pregnant and that, having regard to the anticipated period of gestation, conception must have occurred before they met.  In the event, Shirley miscarried in June 1976.  The applicant said that, when Julie was born, she had difficulties in ‘accepting’ the child.  She would do anything to stop Julie crying when a young baby and this had included ‘suffocating’ her with a pillow.

10. When the applicant and Shirley were living at Cerberus in 1978, Shirley’s young sister Dorothea May Capewell came from Perth to stay with them.  Ms Capewell gave evidence.  She said the visit was in July 1978 when she was thirteen.  The applicant was not sure about the month.  However, her 1978 diary records ‘Dot’ arriving for a stay in December, and it seems most likely that this is correct and that Ms Capewell’s visit took place at the end of the year in the school summer vacation.  Ms Capewell said that the applicant and her sister argued and the applicant hit Shirley.  Ms Capewell said she also observed the applicant holding Julie suspiciously under water in the bathroom.  The applicant denied striking Shirley during Ms Capewell’s stay and also doing anything to harm Julie.  It does appear that the infant was naked at the time, and there may have been an innocent explanation, such as bathing, for conduct that a vigilant Ms Capewell may have considered suspicious.  However, whilst every allowance must be made for the time that has passed, I am satisfied that Ms Capewell was telling the truth about her recollection of the applicant striking her sister.  Such events would have left a powerful impression on a young teenaged girl.  This was not an invention on the part of Ms Capewell who gave her evidence carefully and cautiously.

11. From the end of 1979 there were frequent separations.  The applicant accepts that in the period up to 1990 she was frequently violent towards Shirley.  Such conduct even included kicking Shirley unconscious in front of the children.

    Therapy and Valmai Stevens – A Dual Relationship

12. Ms Stevens quickly formed a close relationship with the applicant.  She became attached to the applicant’s ‘side’ in her fights with Shirley for custody of the children.  They worked together and the applicant became immersed in the topic of PTSD.  Ms Stevens provided support to the applicant when she separated from Shirley in September 1990.  The tone of her partisanship is reflected in her reports to the commanding officer at Stirling and to Dr Dillon.  In her report to the commanding officer of 20 September 1990, Ms Stevens referred to a ‘further critical incident’ in 1985 in addition to the Kimbla incident.  This was a plain exaggeration to bolster the applicant’s ‘retention’ in the RAN.  More disturbing, however, is her denigration of Shirley’s motives in drawing attention to the applicant’s ‘deviant behaviour’.  By the time Ms Stevens reported to Dr Dillon on 8 October 1990 she had identified ‘two other critical incidents’ aboard Ajax, involving a ‘life threatening electrical fire’ and the disabling of the ship, which produced ‘stress reactions of varying intensity during each ventilatory session.’  Once more, Ms Stevens accused Shirley of making unfounded suggestions about the applicant’s sexual behaviour.

13. By November 1990 the applicant was working with Ms Stevens on PTSD debriefing.  Dr Gidley noted this fact in a report dated 28 November 1990 and said that the applicant’s response to treatment had been positive.  Ms Stevens was emboldened to prepare a report on 5 December 1990 for the commanding officer at Stirling, which she described as supplemental to that of 20 September 1990.  In her report Ms Stevens said:

    ‘2.       PO Mewett has responded most positively to therapeutic intervention.  This view is also supported by Dr. T. Gidley, Consultant Psychiatrist, Repatriation General Hospital, Hollywood.  There are no indications of any sexual deviancies and it is now clearly apparent that there were no real sexual pathological aberrations.  There are NO connotations of Transsexualism or Transvestism.  Post-traumatic Stress Disorder is now recognized as the most severe type of the stress disorders and how PO Mewett coped with the many critical incidents which predisposed this disorder is an amazing feat of emotional endurance.  Now that the stressors have been reduced or removed, PO Mewett can adequately cope with even the most acute stress levels.

    3.        There is now clear indications that many of the insinuations revealed in the initial report were exaggerated purposefully by Mrs. Mewett in an attempt to effect her husband’s discharge from the Royal Australian Navy.  The family unit is dysfunctional and PO Mewett has been granted the permanent custody of one of the children.  Mrs Mewett is under the care of a Psychiatrist and has a history of suicide attempts and anti-social behavioural patterns.  There is hard evidence of these indicators which are available if required to substantiate the overall picture which has emerged.

    4.        PO Mewett continues to display diligence and positivity towards his career and if at all possible, it is now important for him to resume his technical work as soon as possible.  In all aspects of his emotional and personality profile he is well within the normal parameters and there are no deviancies of any psychological orientation except those pertaining t the Post-traumatic Stress Disorder.’

14. This report was sent following a series of unpleasant incidents between the applicant and Shirley, which culminated in a fracas on 2 November 1990 in which Shirley assaulted the applicant at a party for Alan’s birthday.  Ms Stevens went to the party with the applicant and Jason, the ‘one of the children’ to whom she had referred and of whom the applicant had custody.  The applicant sought treatment the next day at the Stirling base sick quarters.  On 19 December 1990 Shirley physically assaulted Ms Stevens.  By January 1991 Shirley had complained to the Psychologists Board of Western Australia about Ms Stevens’s relationship with the applicant.

15. The applicant continued working with Ms Stevens.  On 26 November 1990 the applicant had been issued with an official Australian passport for use when travelling on government business.  A copy of that passport is in evidence.  The applicant was a member of the Critical Incident Stress Debriefing (‘CISD’) team organized by Ms Stevens.  On 5 February 1991 Ms Stevens reported to the medical officer at Stirling that the applicant had been seen ‘on an ongoing basis since August 1990’, that the applicant was a valuable member of the CISD team who acted as a peer support for others suffering from PTSD, and that the applicant had made firm arrangements for the care of Jason should service requirements take her away from home.  Ms Stevens said that the applicant’s therapy had been reduced to one session per week and that, whilst she was ‘psychologically fit for sea duty’, it was recommended that the applicant ‘remain in the WA area’ to ‘allow continued follow-up’.

16. On 4 April 1991 the applicant used her new passport to travel to the United States to attend a conference on PTSD in Baltimore.  She attended the conference with Ms Stevens.  (The applicant had asked to be sent as part of her duties but had to take recreation leave.)  Afterwards she travelled by herself to England and visited her family.  Whilst the applicant was away, her life unravelled even further.

17. The following facts emerge from the records of the Western Australia Police Department in evidence.  Whilst the applicant was overseas, Jason went to live with Shirley and the other children.  Because Jason ran out of clothes, Julie went with him to the applicant’s house to get some clean clothes.  Whilst there she picked up a briefcase, which Jason said was full of his clothes.  When Julie returned home, she gave the briefcase to her mother.  Shirley opened the briefcase.  It contained numerous items of female underwear and three photographs.  The photographs depicted the applicant, whilst naked posing in various positions displaying her genitalia.  Alan identified the photographs as having been taken by him in May 1990 at the request of the applicant.  The photographs were taken at the family’s then residence in the presence of Julie and Jason whilst Shirley was away on holiday with Damian.  When the applicant returned to Perth on 1 May 1991, she was interviewed by detectives at the airport and taken to the child abuse unit’s office at West Perth.  There she made a statement admitting the facts of the offence.  The applicant was arrested and charged under the Criminal Code with indecent dealing.  On 12 June 1991 she was committed to the District Court for trial on 5 August 1991.  Ms Stevens furnished the surety undertaking required for the applicant’s bail.

18. In her evidence, the applicant acknowledged the course of these events, whilst purporting not to recall the details of the photographs.  In any event, she agreed that she subsequently pleaded guilty and was given a bond.  I am bound to say, however, that the applicant did not appear to appreciate how grotesque and inappropriate her behaviour was.  The applicant was admitted for a short while to the sick quarters at Stirling where she was diagnosed as suffering from depression.  During May and June 1991, Dr Gidley increased the dosage of the applicant’s anti-depressant medication.

19. On 6 June 1991 Ms Stevens faced a hearing by the Psychologists Board into Shirley’s complaints.  The Board’s subsequent report is in evidence.  Ms Stevens told the Board that she had a close platonic relationship and friendship with the applicant of a non-sexual nature and that the applicant had not received any therapy from her since December 1990.  Both those statements were not true.  The evidence of both the applicant and Ms Stevens ultimately acknowledged that by this time they had commenced a sexual relationship either before or shortly after their visit to Baltimore.  Ms Stevens was coy about the details.  The applicant indicated that there was vaginal intercourse and fellatio up until about August 1991 (seemingly after the criminal charge was disposed of), at about which time they commenced to live together in a de facto relationship.  Both the applicant and Ms Stevens also reluctantly acknowledged that Ms Stevens had purchased women’s clothing, including underwear, for the applicant from the start of 1991.  Neither of them told Dr Gidley that the applicant persistently cross-dressed throughout 1991.

20. Ms Stevens and the applicant continued to work together when the applicant was not an in-patient in the Stirling sick quarters.  It cannot be doubted that the applicant was in turmoil at this time.  Shirley’s accusations had been spectacularly vindicated one year after they were first made.  Also, after the applicant was committed for trial, the commanding officer at Stirling wanted a recommendation for the applicant’s medical discharge from the RAN.  About this time the applicant produced a five-page typewritten paper on PTSD drawing on pieces of information that she picked up in the United States.  In this paper she said that an incident on Ajax in 1976 ‘was the start of my disorder’.  She also maintained that she kept having intrusive thoughts about the incidents on Ajax and Kimbla.  The paper concludes with a florid description of supposed PTSD symptoms suffered by the applicant and the allegation that she was set up by Shirley.  After the indecent dealing charge was dealt with, Ms Stevens prepared a statement dated 15 August 1991 to be used in contested proceedings for the custody of the applicant’s children.  In this statement Ms Stevens dishonestly implied that the existence of the offending photographs was known to the child welfare authorities when she and Chaplain Rayner first became involved with the applicant.  More chillingly, Ms Stevens downplayed the applicant’s offence by gratuitously observing that Jason told her Alan ‘volunteered to take the photographs’.  By the end of 1991 Julie was five months pregnant.  Ms Stevens wrote to the commanding officer at Stirling on 13 December 1991, informing him of this fact and asserting that the applicant would have to assume guardianship of Julie’s baby until the mother was sixteen.  Accordingly, Ms Stevens said that, if the applicant were posted to sea, the stressors from the family situation would give rise to extreme concern about ‘coping skills, particularly from a safety aspect (as an ETC)’.  Ms Stevens suggested that a posting in ‘late February, early March’ to Nirimba in Sydney’s western suburbs would allow the applicant ‘to escape from the continuing problems with the wife’.  In the event, on 11 February 1992 the applicant saw Dr A G Robertson, the medical officer at Stirling, complaining of lack of sleep and nightmares following the death of her daughter’s child.  Dr Robertson noted that these problems were settling and that the applicant required no medication.

    Psychiatric Treatment during RAN Service in Perth

1. Dr Gidley gave evidence about his treatment.  He is now a consultant psychiatrist in Melbourne.  When he first qualified as a doctor, he served for four years in the RAN.  Between 1987 and 1995 he was employed by the Department of Veteran Affairs (‘DVA’) as director of psychiatry at the Repatriation General Hospital Hollywood.  Dr Gidley saw the applicant ‘somewhere between 10 and 15 times’ over a period of about eighteen months from 29 August 1990. 

2. Dr Gidley said that, when the applicant described the events on Kimbla at the first appointment, she lost her composure to some degree, became restless and agitated and manifested overt distress.  He accepted what the applicant told him about her lasting distress and preoccupation with that event.  Dr Gidley confirmed that he had no information to check what he was told.  In particular, he did not speak to the applicant’s wife.  The retrospective history of eleven years, including nightmares, came entirely from the applicant.

3. Dr Gidley referred to four criteria required for a diagnosis of PTSD, which he described as the stressor experience, the re-experiencing of the traumatic event, avoidance behaviour and continuing symptoms of hyper-arousal.  He thought that the first of these was the most important.  It is an objective matter and the other aspects are dependent upon subjective assessment and the honesty of the person who is providing the symptomatic details.  Dr Gidley acknowledged that all criteria must be met and agreed that the truthfulness of a patient was crucial in weighing symptoms described.  He had accepted the applicant as truthful.  Dr Gidley explained that avoidance could take many forms such as a numbing of emotional responses, avoidance of situations that remind a person of the original event (‘phobic avoidance’), prolonged intoxication or an unwillingness to discuss and analyse particular experiences.  If the applicant coped satisfactorily at sea in rough weather, watched thriller movies about stories at sea and visited the Kimbla as scrap, she did not suffer phobic avoidance.  But Dr Gidley thought that she suffered avoidance of the lastmentioned type.  PTSD could, he said, flare up as a result of events in later life.  When Dr Gidley saw the applicant on 6 December 1991, he thought that the applicant’s PTSD had declined quite significantly in significance and that she was fit for ‘fairly unrestricted duties’ in the RAN.

4. Dr Gidley described his methods for eliciting information from a patient about the four areas of symptomatology necessary for a diagnosis of PTSD.  He did not know that Ms Stevens had stayed at the applicant’s residence on the night she was returned to Perth.  Nor could Dr Gidley recall knowing that Ms Stevens had already made a diagnosis of PTSD when  he first saw the applicant.  As his own treatment progressed, Dr Gidley became concerned that Ms Stevens’s relationship with the applicant blurred the boundaries between professional and personal contact.  He had become aware at some point that they were living together.  He did not know that during 1991 a sexual relationship developed.

5. In cross-examination, Dr Gidley was pressed with the applicant’s failure to refer to Kimbla over a period of eleven years when presenting to doctors with obvious psychological difficulties.  Dr Gidley accepted that the applicant offered explanations other than Kimbla for her difficulties on such occasions, but he pointed to what he described as ‘three separate diagnostic streams having an influence on [that] behaviour’.  Dr Gidley stressed the comorbidity he had diagnosed, and he suggested that the applicant was focussing on things other than Kimbla as an explanation for her distress.  PTSD is a ‘smouldering’ illness and its symptoms were perhaps more easily put aside by the applicant.  However, Dr Gidley agreed that, in arriving at a conclusion that a person suffered a psychiatric injury, it was important how an incident adds to or modifies existing functioning.  If there was no change in a person’s behaviour before and after an event, that would suggest the event has had ‘minimal diagnostic impact’.

6. Dr Gidley’s acceptance of the applicant’s truthfulness extended to what she had said about a decline in cross-dressing (which by December 1991 he did not consider posed a risk from a security point of view).  However, Dr Gidley allowed that he did not know that Ms Stevens had purchased women’s underwear for the applicant, who had continued to cross-dress during 1991, and that the applicant engaged in various sexual acts whilst cross-dressing.  Dr Gidley said that he was not in a position to know of such adverse conduct by a therapist over whom he had no control.

   Sydney Posting and Medical Discharge

7. The applicant was posted to Sydney in March 1992, and Ms Stevens was transferred to a job located at HMAS Penguin in Balmoral.  They lived at Hornsby with Jason.  The applicant sought no medical assistance until June 1992 when she saw Dr M R Gibson, a medical officer, at the ‘insistence’ of Ms Stevens.  Dr Gibson diagnosed depression and referred her to a psychiatrist, Dr Duncan Wallace.

8. Dr Wallace gave evidence and copies of many reports from him are strewn through the documentary evidence.  He was also extensively cross-examined by reference to his own notes.  Dr Wallace is a consultant psychiatrist in Sydney.  He joined the RAN as an undergraduate and continued in the service for four years after he first qualified as a doctor.  During 1992 Dr Wallace conducted a clinic once a week at the medical centre at HMAS Kuttabul.  When Dr Wallace first saw the applicant on 9 July 1992, he had access to service records relating to the applicant’s medical history.  He did not think that she was depressed at the time, although he then formed the opinion that she had a PTSD of chronic duration.  Dr Wallace accepted the prior diagnosis by Dr Gidley and made some recommendations about medication for the applicant’s anxiety symptoms.  In his report to Dr Gibson, he referred to a ‘background of social problems’, by which he said he meant the marital breakdown in 1990 and accusations of cross-dressing, incest and physical abuse directed at the applicant’s wife.

9. The applicant told Dr Wallace at the first consultation of a ‘very hazardous’ level of alcohol consumption between February and August 1990 and of trying to throw herself off the top of a building in Kings Cross in March 1990.  This history of alcohol intake was, Dr Wallace agreed in cross-examination, different to that given to Dr Vandenberg.  Dr Wallace accepted that he did not ‘test’ the applicant’s story.  He agreed that his note of no psychiatric history before 1990 would represent what the applicant told him.  Confronted with naval records of the applicant’s treatment for depression and anxiety as early as 1983, Dr Wallace explained the applicant’s failure to mention such a history on the basis that he would have asked about ‘seeing psychiatrists’.  He could not recall whether he was aware at the time of such previous attendances, but he thought that he had looked at the records and ‘made a decision not to duplicate all the stuff’ in them.  Dr Wallace agreed that he had failed to note when the applicant first got ‘flash-backs’ and how long she had problems with poor memory.  He agreed that those omissions made it difficult to relate such symptoms to an incident in 1979, but said that he was concentrating on the recurrence of the applicant’s problems which had led to the resumption of anti-depressant medication.  Dr Wallace considered that an interruption in the applicant’s treatment for PTSD was ‘instrumental’ in leading to the recurrence of those symptoms.

10. Dr Wallace did not think that the applicant had a personality disorder, although there were marked obsessional/perfectionist traits in her personality.  However if the applicant had suffocated her one month-old child in 1977 or assaulted that child, such an aggressive and inappropriate act could strongly indicate a personality disorder in existence before the Kimbla incident.

11. Ms Stevens’s report of 20 September 1990 was shown to Dr Wallace and his attention was drawn to the reference to the ‘1985 incident’.  Dr Wallace said that, over a period of about three years during which he saw the applicant, such an incident was never mentioned to him.  That gave rise to the concern on his part that he may have obtained a selective history.  Dr Wallace thought that Ms Stevens’s involvement in the applicant’s treatment was totally inappropriate in view of their sexual relationship.  It was a matter of concern that the applicant’s history was given after she had been involved with the CISD unit and exposed constantly to information about PTSD symptoms.

12. When Dr Wallace next saw the applicant on 23 July 1992, he asked about her sexual history.  He was also told about the applicant’s wife trying ‘to hang herself and overdose in front of the psychologist’, but he did not recall whether he understood at the time that ‘the psychologist’ was Ms Stevens.  Dr Wallace confirmed that the applicant said that, unless she got a full-time counselling job in Critical Incident Stress Management, she was going to leave the Navy.  Dr Wallace agreed that for a person suffering PTSD such a job would be unusual and bizarre.

13. Following a consultation on 3 September 1992, Dr Wallace recommended that steps be put in train to have the applicant discharged as medically unfit.  He also obtained from the applicant further details of a long-term homosexual relationship that began when she was an adolescent, but he did not understand that that relationship continued on after the marriage.  Soon after this consultation, the applicant was admitted to the Balmoral Naval Hospital where she remained under Dr Wallace’s care until her discharge. 

14. The applicant continued to see Dr Wallace after she was discharged from the Navy.  Dr Wallace said her symptoms waxed and waned.  By 14 September 1993 Dr Wallace noted that the applicant wanted to go to a Kimbla reunion.  About this time Dr Wallace said that the applicant was totally preoccupied with the sex change, and he agreed that the transgender issue was apparently a significant reason for her unhappiness in the past.  Dr Wallace agreed that it was clearly incorrect when the applicant told him, on 19 May 1994, that she had no transsexual ideas before Ajax and Kimbla.  On 15 August 1994 Dr Wallace wrote to the applicant’s GP, Dr Loretta Rowan, about his concern that Ms Stevens was administering a particular type of anti-anxiety medication to the applicant.

15. Dr Wallace saw the applicant a total of twenty-one times.  The last occasion was 6 March 1995, when the applicant told of problems with her sex change operation.  At this stage the applicant’s problems were principally related to transgender and family issues.

16. Dr Wallace would not be shaken in his belief that in 1992 he came to the correct diagnosis.  He thought that the PTSD originated from the trauma in 1979 and that the gender identity problem predated that condition.  He was not sure about the onset of the major depression  that was also diagnosed.  The ‘all night session’ with Ms Stevens may have been a catharsis.  Dr Wallace explained away the applicant’s performance appraisals on the basis that their timing may not coincide with peak periods of comorbid disorder, but he was at a loss to understand the applicant’s ability to undertake courses involving the mastering of complex and new material.

    Compensation and Pension Claims

17. The applicant clearly regarded her career in the RAN as over within a very short time of seeing Dr Wallace.  At the end of July 1992 she took ten days recreation leave and used the official passport to travel to the United States once more.  On 27 August 1992 she made a compensation claim for PTSD, and on 18 September 1992 she lodged with the DVA a claim for a disability pension and medical treatment in respect of PTSD.  Both claims were accepted on 10 December 1992.  Comcare obtained a medical opinion from Dr S J Lloyd on 4 November 1992.  Dr Lloyd considered that the applicant suffered from chronic PTSD and that the Kimbla incident contributed materially to the causation of that condition.  Dr Lloyd is now dead, and counsel for the applicant rely on his opinion in this case.

18. Counsel for the applicant also rely on the opinion of another doctor who is now dead.  On 1 November 1993 an appointment was made by her solicitors for the applicant to be assessed for medico-legal purposes that day by Dr Bob Wu, a psychiatrist.  A report from Dr Wu dated 5 November 1993 is in evidence.  He agreed with the diagnosis of PTSD previously made by Dr Gidley and Dr Wallace.  Dr Wu’s assessment of the degree of permanent incapacity suffered by the applicant was a necessary prelude to the institution of this action, which had got off to a false start in this Court on 31 August 1993 and was commenced on 20 June 1994 in the High Court.

19. Ms Stevens also made a claim for compensation from the Department of Defence on 30 August 1993.  She claimed to have suffered from a general anxiety state as a result of incidents at work on 3 March 1993, soon after the applicant was discharged from the RAN.  Ms Stevens claim also related to a traumatic stress reaction.  Ms Stevens ceased work on 15 November 1993 and never went back.  She sought a voluntary redundancy package on 28 September 1994 and resigned on 6 October 1994.  Ms Stevens’s claim for compensation was eventually settled on 21 November 1997, long after she had taken up residence in England, when Comcare agreed to pay her compensation for incapacity in respect of a closed period up to 15 June 1996.

    Sex Change

20. In April 1993, after her discharge, the applicant left on a six week trip overseas, still using the official passport.  She visited the United States, England (with a brief trip to the continent of Europe) and Hong Kong.  When she returned, she set about becoming a woman at about the same time she had first commenced her common law claim and Ms Stevens had instituted her claim for compensation.

21. Ms Stevens found out the name of a psychiatrist, Dr Cornelius Greenway, who made assessments for gender reassignment surgery.  The applicant obtained a referral to Dr Greenway from a Hornsby GP, Dr Chris Hadgis in August 1993.  The applicant saw Dr Greenway for the first time in September 1993.  Dr Greenway did not give evidence, but he arranged referrals to Dr Alfred Steinbeck for hormone treatment and to Dr Anthony Orsmond for a second psychiatric opinion.  According to the letter Dr Greenway wrote to Dr Orsmond, by 19 October 1993 the applicant ‘had started living full time as a woman’.

22. Dr Steinbeck is a consultant physician in Sydney, and he did give evidence.  A copy of the letter he wrote to Dr Greenway after his first consultation in October 1993 was received in evidence together with copies of other letters dated 12 January 1994 and 25 March 1994 to treating doctors.  In addition, a medico-legal report dated 14 March 1994 prepared by Dr Steinbeck for the purposes of the applicant’s compensation claim was tendered.

23. It must be emphasised that Dr Steinbeck did not see the applicant for a psychiatric assessment and, when he saw the applicant, he did not know that his patient had made a study of PTSD.  Dr Steinbeck agreed that he simply accepted the PTSD diagnosed by ‘two service psychiatrists’.  He did not, however, think at the time that the applicant was suffering a personality disorder because that would have been a contrary indication for hormone treatment.

24. Dr Steinbeck said that he had to be convinced that a person was a transsexual before he would offer hormone treatment.  He was ‘intrigued’ by the applicant’s relationship with Ms Stevens, and he was ‘rather interested’ in the contacts she had made recently on her trip to England with organizations catering for transsexuals and her familiarity with the literature on changing sex.  Dr Steinbeck noted ‘little response’ to the oestrogen therapy the applicant had ‘received for 12 months’ and prescribed a different type of oestrogen drug for the applicant.  By January 1994 he had reassured the applicant that the amount of milk secreted from her breasts was ‘within normal’.  In the course of his supervision of the applicant’s hormonal conversion, Dr Steinbeck advised of the effect upon that treatment of Dr Wallace’s drug therapy for PTSD.

25. The history taken by Dr Steinbeck was that the applicant’s cross-dressing had no homosexual attributes or activities.  Dr Steinbeck explained that he was referring to anal penetration.  I disbelieve entirely the ‘evidence of distress and emotional upset’ that Dr Steinbeck referred to in his medico-legal report and that he claimed to recall in the witness box.  The doctor made no contemporaneous notes of most of these matters, and his insistence over seven years later that he could recall the applicant’s problems, including  that ‘he’ was very nervous, is just not credible.

26. Dr Orsmond saw the applicant for the purposes of his second opinion five times between 7 December 1993 and 29 September 1994.  Ms Stevens attended on at least the first two occasions.  Reports to Dr Greenway after the first consultation, to the applicant’s solicitors on 10 March 1994 and to Dr Peter Haertsch are in evidence.  In addition, Dr Orsmond interviewed the applicant for a medico-legal report on 1 August 2001, and copies of two subsequent reports to the applicant’s solicitors have been received in evidence.  Dr Orsmond also gave evidence.

27. In his report of 10 March 1994 Dr Orsmond said that he considered the applicant capable of work and that he saw no obvious evidence of PTSD symptoms during interview.  He repeated this observation after his examination on 1 August 2001.  Further, in his subsequent report Dr Orsmond said:

    ‘I was also informed that following a euphoric phase post-operatively, Romana went into a quite severe depression, and was treated by Dr Greenway for this (this is not an uncommon experience in transsexual post-operative patients).  I also learnt that the surgery had led to significant complications, leaving damage to the urethra which required several more operations (hospitalised about six times in the last three years), and now Romana needs an in-dwelling suprapubic catheter which frequently becomes infected or rejected by her body.’

28. Dr Orsmond thought that the applicant’s transsexualism existed from birth.  Such people were always in ‘tremendous turmoil’.  Whilst he had noticed no evidence of it, any diagnosed PTSD would have been put to one side as not being ‘terribly significant’ in weighing up the proposed gender change upon which he was to give a second opinion.  Reassignment surgery was a mutilating operation which was irreversible and carried real risks for the ‘tortured souls’ who underwent it.

29. Dr Haertsch was the surgeon who performed the reassignment surgery on 10 October 1994.  This was performed in the Westside Private Hospital in Sydney where the applicant was an in-patient for five days.  There is no report from Dr Haertsch, merely a statement of the cost of his services.  Indeed, there is no specific evidence at all of how the anatomical appearance of the applicant’s body has been altered by adapting or removing genitalia.  Presumably her testes and penis were removed.  There is a reference in the urological material from England to the scrotum having been invaginated into a space in the perineum.  The applicant has expressed frustrations to doctors that she is not a ‘real woman’.  This sounds like a recognition that she is without uterus or ovaries or any other biological characteristics of a woman.  I should add too that there is no precise evidence of the way in which the applicant’s hormonal treatment changed her secondary sexual characteristics.

30. It is clear enough that the applicant spent most of her emotional energy in 1993 and 1994, first waiting for her discharge and then preparing for her sex change.  Dr Greenway noted that she had been receiving hormone treatment for some time before he saw her.  At the end of 1993 and beginning of 1994 the various compensation claims of the applicant and Ms Stevens required attendance upon doctors and solicitors, including steps required to mount this action.  Interestingly, Dr Wu commented that the applicant was not under any psychiatric care in November 1993.  She appears after that time to have seen Dr Wallace on a rather desultory basis.  For instance, after the applicant moved from Hornsby to Kogarah, she arranged on 18 April 1994 for her new GP, Dr Rowan, to give her a fresh referral to Dr Wallace.  At this time there was, of course, a flurry of medico-legal activity.

1. There is no evidence of the applicant’s psychiatric treatment for the severe depression she apparently suffered after the operation, to which Dr Orsmond referred.  At the end of 1994 the applicant went on a trip to Singapore and Malaysia.  She used an Australian passport that was issued on 31 October 1994 in her new name and showed her sex as female. 

   Home to England

2. On 27 March 1995 the applicant left Australia to live in England.  She travelled on a United Kingdom passport issued at the British High Commission in Canberra on 22 February 1995.  It also was issued in her new name and showed her sex as female.  Jason and Ms Stevens went too, and they all set up house in her native town of Torquay.

3. Since taking up residence in England, neither the applicant or Ms Stevens has re-entered the paid workforce.  Ms Stevens did try to establish a private psychological consultancy with the assistance of the applicant, but this soon failed.  Each of them became involved as volunteers with a charity called Panderic, which was based in Torquay and provided a support service for victims of sexual assault and abuse.  Ms Stevens, in particular, interested herself in the status of ‘transgendered persons’.  The applicant, on the other hand, apparently became obsessed with the activities of paedophiles.  Antisocial behaviour by the applicant led to her being refused permission to visit Panderic’s premises.  This was a cause of friction between her and Ms Stevens.  Eventually Panderic lost its funding and ceased to operate.

4. The domestic circumstances of the family were, and are, obviously difficult.  Jason had emotional problems and there were fights between him and the applicant.  Ms Stevens was the one in the middle.  The acceptance of the applicant by her family since the sex change has caused some tension.  However, the evidence given by the applicant’s mother, younger sister and the sister’s husband does not suggest that this is much of a problem.  (Their evidence also confirmed that the aberrations and abuse in her childhood were unknown to the family.)  Ms Stevens and the applicant live in a multi-storey house with the applicant occupying a bedroom on the top floor under a skylight.  She says rain on the glass causes distressing reminders of the Kimbla incident, but this is the only bedroom with a bathroom en suite and she needs such a facility on account of her urological problems.  In any event, Ms Stevens would be unable to move to a room upstairs.  She is very overweight and has real mobility problems.  (Ms Stevens attended court in a wheelchair.)  Jason has now left home. 

5. The applicant’s medical treatment in England has mainly been provided through the National Health Service (‘NHS’).  It is possible to discern from the documentary evidence in a slightly sketchy fashion the course of that treatment.

6. The applicant is a patient of the Parkhill Medical Practice in Torquay.  Her general practitioner is Dr Simon Murray or, in his absence, Dr Roger Fearnley.  The applicant’s first visit to the practice concerned problems with urethral strictures.  She made no mention of PTSD.  In the second half of 1995 the applicant was treated as a private patient at the Mount Stuart Hospital in Torquay by Mr Seamus MacDermott, a urologist, and Mr John Foulkes, a gynaecologist.  They performed a urethral meatoplasty.

7. Specialist services are provided by the NHS in Torquay at the Torbay District Hospital.  In 1996 the applicant was referred to Dr Robin Teague, a consultant gastroenterologist, for investigation of abnormal gastric retention.  The applicant’s son, Jason, was also being seen at this time by a child guidance unit.  This brought the applicant into contact with the team at the community mental health centre at Waverley House in Torquay, where the psychiatrist at the time was Dr Flo Watt.  The applicant was not interested in accepting assistance with any psychological problems from this source.  She did see a consultant psychiatrist, Dr Russell Reid, in August 1996, who noted that she had been under the care of a Dr LH Sherman at the Albany Gender Identity Clinic in Manchester for improvement in breast development.

8. In 1997 the applicant sought private treatment from Dr Michael Bowman, a consultant psychiatrist, at the Charter Nightingale Hospital in London.  A number of his reports are in evidence.  The applicant was first seen by Dr Bowman on 25 April 1997.  This referral was, according to a letter written by Dr Bowman to the DVA, ‘initiated’ by Ms Stevens because the applicant had experienced a recurrence of PTSD symptoms, including ‘feeling actively suicidal’ whilst being treated with an antidepressant called venlafaxine.  Dr Bowman recommended the applicant’s admission as an in-patient for a short period in order to withdraw her from venlafaxine and to reassess appropriate pharmacotherapy.  The DVA gave its approval, and the applicant was admitted to the Charter Nightingale Hospital on 27 May 1997.

9. The notes relating to her admission are also in evidence.  On 30 May 1997 Dr Bowman noted of the applicant: ‘When stressed, acts out, is aggressive.  Previous to surgery she coped with relieving stress by cross-dressing.  Now doesn’t appear to have a therapeutic coping mechanism for the stress which she continues to put herself under.  Needs to work towards a change in life-style and I think Val and Romana together have many issues to address since the gender realignment, which are currently repressed and avoided.’  On 5 June 1997 Dr Bowman noted that the applicant was ‘talking about 2 other traumas she experienced in the Navy before the [Kimbla] incident.’  She was discharged on 19 June 1997, at which time Dr Bowman considered that the applicant had ‘improved to the extent that… further antidepressant therapy was not necessary.’

10. Dr Bowman next saw the applicant on 6 August 1997.  The appointment was arranged by Ms Stevens ‘as an emergency’ because the applicant ‘had become increasingly suicidal, aggressive and unpredictable’.  Dr Bowman prescribed a tricyclic antidepressant  for her.  He noted that the applicant was ‘just fed up going under the scalpel’.  Dr Bowman reported to Dr Murray:

    ‘Romana told me that she feels she has gradually deteriorated since she left us free of medication.  She has got to the point where she describes having no motivation, a feeling that she can’t function and that she sees no reason to keep going as she perceives her life as a total failure and can see no future and in fact doesn’t want any future and would like to take her life.  She said she thinks it’s cruel that Val is trying to keep her alive and she is only doing it for her own ends.

    …

    She says in fact that she doesn’t feel she is a complete woman and that only motherhood would be the ultimate which she can never have.  However she doesn’t regret her operation but it is what has happened since with the repeated urethral and vaginal problems and psychically [sic] she admits she doesn’t feel a complete woman.  Sleep is virtually non existent, her appetite is poor and she has a tendency to starve herself.

    On examination in fact she looks very well but she has certainly lost weight.  She was tearful and severely depressed throughout the interview.  Val then joined us and confirmed the situation and her concerns that Romana has suicidal thoughts currently.  However Val feels that in looking back some seven years ago when she was on a tricyclic antidepressant things did improve and Val felt at that time Romana got something out of her life.  Val herself was able to help her so that if she resorted to a tricyclic Val seems to think that she can personally work with her at home.  Although I did discuss with them the possibility of readmission either to the local health service or to us if the Australian Navy would pay, Romana I think would return here if her fees were paid but Val seems quite determined to try and help her at home.  Indeed one does wonder about Val’s psychological motivations; although I don’t doubt her sincerity in wanting to help Romana this may well feed into some personal pathology of Val’s.’

11. The applicant was reviewed by Dr Bowman on 8 October 1997 because she required a report for the military superannuation authorities in Australia on her fitness for work.  Dr Bowman subsequently wrote to her GP suggesting that a beta-blocker called Inderal be added to the applicant’s medication in order to help her perfuse perspiration and to calm her down.  On 12 November 1997 Dr Bowman again interviewed the applicant for the purpose of preparing a further report for superannuation purposes.  (In the meantime he had been furnished with reports from Dr Gidley and Dr Wallace.)  In his subsequent report Dr Bowman noted that at examination the applicant’s ‘emotional state was one of moderate depression and anxiety’, and said:

    ‘To address your specific questions regarding current impairments:

    Physical Impairments

    I do not think she shows any evidence of any impairment in mobility.  She has impairments of strength and energy which fades quickly and carrying or lifting weights would be impossible.  She finds walking very difficult.  Romana would find it very difficult to cope with heights or moving machinery as she could well impulsively attempt to damage herself and she finds it very difficult to trust herself in such situations.  She quickly goes into what she describes as “shock” which seems to be a trigger of flashbacks to working on board ship.

    Mental Impairments

    These are gross with impaired concentration and attention resulting in extremely poor short term memory.  For example she finds herself in a room and can’t think why she is there, and then goes back to where she had been and the memory usually then returns.  Her sleep pattern is grossly affected and she finds it very difficult to get off during the night into any satisfactory sleep.  She tends to catnap until daylight comes and then she can sleep.  Again this seems to be related to memories of sleeping onboard ship as she says that sleeping in the dark is bad but is even worse if it is raining and she can hear it pattering on the windows recalling once again impressions at sea.

    Her vision has deteriorated and she is now prescribed spectacles for myopia.  Hearing is impaired with continuing tinnitus.  Anxiety and agoraphobia remain an additional problem.  She can panic quickly and then tends to verbally explode.  Her level of tolerance is severely impaired.  She has no capacity whatsoever to take a crisis.  Her extremely low tolerance of any stress results in verbal aggression.  She fears always that it will be accompanied by physical aggression.  In particular she is fearful that she could lash out at her partner or son but up to now she has been able to exercise self restraint.  She does however throw objects and smash them.

    It seems to be that anything she is unable to control she reacts strongly to and feels panic and her response is verbal aggression.  For example she hates being a passenger in a car when she says “My adrenalin goes haywire”.  This need to control would very much fit with my impression that her premorbid personality contains major traits of obsessionality.  I consider these are primary impairments resulting from her PTSD and in addition she has secondary depression which at times has been so severe that she has developed active suicidal ideation, the last time being some six to eight months ago.

    In summary, it is my opinion that Ms Romana Mewett has suffered from personality disorder and gender dysphoria from an early age.  Following an incident whilst working in the Royal Australian Navy in 1980 she developed symptoms of Post Traumatic Stress Disorder which were not diagnosed until some ten years later.  Added to this she had further problems in her marriage.  Active treatment for PTSD offered in the late 80s and 1990 failed to ameliorate her symptoms which only partially responded to antidepressant therapy.  In 1994 she underwent gender realignment and has since been living as a transsexual woman with a female partner.  The gender realignment operation has not been totally successful and she still is troubled with chronic bladder infections and is under a lot of pain.  Psychologically as well I don’t think she feels, and never will feel, a complete woman.

    Her PTSD symptomatology must now be described of a chronic nature and it has failed to respond to current treatments.  She remains quite incapable of returning to the employment that she formally undertook in the Royal Australian Navy and indeed it remains to be said at the moment that she is unable to be employed under any capacity in view of her low toleration of stress and her extreme emotional lability.  It is my opinion that Ms Romana Mewett must be rated as having 100% impairment and is totally restricted in her capacity to do any duties associated with her former employment or indeed currently any other form of employment.’

12. Dr Bowman saw the applicant on 11 December 1997 and 19 February 1998.  He subsequently wrote to Dr Murray advising alterations in her antidepressant medication.  The interview on 19 February 1998 was also for the purpose of preparing a medico-legal report for the applicant’s solicitors, in which Dr Bowman commented that, apart from the PTSD symptoms, the applicant ‘has ongoing problems following her gender realignment and has only recently had a fourth operation on her urogenital system.’  He considered that she was ‘chronically incapacitated with an extremely vulnerable personality and a grossly impaired level of tolerance which results in her being unable to cope in any social situation for very long and limits her mobility and travelling.’  The applicant’s solicitors wrote to Dr Bowman on 29 April 1998, asking for his comments on a report obtained by the Commonwealth from Dr David Bell.  Dr Bowman replied that he had first seen the applicant on account of problems with the medication used following her gender realignment and that PTSD was only mentioned when the applicant was giving her history.  He said that, once her medication problems were sorted out, he had only ever seen the applicant in order ‘to do a report for somebody in Australia’.  Dr Bowman further wrote:

    ‘I am telling you this to make it quite clear that in no way have I been a therapist to Romana.  She has always kept the sessions to the requirements of the reports and I have let her conduct the sessions in this way as she seemed to get all the support she required from her partner and I was never asked specifically to become her Clinical Psychiatrist.

    I do not feel I have entered into a therapeutic relationship with Romana and I do not feel that I know her well.  My report to you and to the Australian Navy was based on the clinical findings at my interviews with Romana and formulated on the basis of what I have gleaned from reports from Australia.  In particular from two doctors: a) Dr A W Steinbeck and b) Dr W L Metcalf.  …

    I am a General Adult psychiatrist and have no specialist experience of cases of PTSD which is in many ways outside my area of competence and expertise.’

13. According to Dr Bowman’s notes, the applicant cancelled appointments in May, June and July 1998.  However, she did see him on 4 August 1998, after which Dr Bowman wrote to Dr Murray suggesting that a drug called sodium valproate be added to her medication in order to ameliorate her dysthymia.  (The records from Torbay Hospital indicate that Mr MacDermott performed a laparoscopic cholocystectomy in January 1998 and inserted a suprapubic catheter in May 1998.)

14. On 23 November 1998 the applicant was once more admitted as an in-patient at the Charter Nightingale Hospital.  This was arranged at the request of Ms Stevens, because the applicant was allegedly ‘suicidal’.  The admitting registrar noted that the applicant said she had been very depressed and suicidal for three days since she was told that her personal diaries were to be subpoenaed in this case.  The applicant discharged herself on 27 November 1998.  Dr Bowman reported to Dr Murray:

    ‘She remained confined to her room, not wanting to mix with the other patients.  Although distraught and miserable there appeared to us to be quite an hysterical elaboration of presentation.  She claimed that she still suffered from PTSD traumas and yet I found her to be reading Naval adventure books and true stories of Naval disasters!  When confronted with this she got irate and threw the books across the room.  She told that she is unable to travel and is fearful of leaving her home yet she managed to travel from Torquay from London by train on her own with no problems.  Her constant theme was of hopelessness, nobody understanding her or doing anything for her and being unable to see any future.  She says that she would like to stop the Court Hearings and give it all up but says she can’t because her solicitor won’t let her!  All in all I felt that her story didn’t quite hang together – there were so many discrepancies and I became suspicious that in many ways we were being manipulated.  I told Romana that I was happy to help her but I could only help her if she would work positively with me towards establishing a future for herself.

    When I pointed out that I was no expert on PTSD and that I had repeatedly informed her solicitors of this she became extremely angry and said she was wasting her time here and immediately took her own discharge.

    My own personal opinion is that the fundamental problem that Romana Mewett suffers from is a severe personality disorder of a narcissistic type and this is compounded by her trans-sexuality.  Into this has played her responses to the accident she experienced 20 years ago in the Royal Australian Navy.  My own feeling is that her current mental state will not improve until she has a resolution of her compensation hearing.  If the outcome of this is successful in her eyes I think Romana could go on and make something of her future.  She has genuine interest in gender problems and she has the intelligence and empathy to work in such a field.  I have repeatedly tried to encourage her along these lines but at the moment she is not open to discussing futures.

    I did try to recommence her on an antidepressant and a mild tranquilliser in view of her overall agitation but she has declined to want medication.  I formed the opinion that Valmai and Romana had wanted me to see Romana, not for my opinion and treatment but for the opinion that they want!’

15. Dr Bowman gave evidence by video link.  He had access to his reports, but a copy of his notes was not available for his use.  Importantly, he was at pains to emphasize several times that he was not an expert in PTSD and that he did not have any relevant clinical experience.  Dr Bowman also said that he could not really say that he had treated the applicant.  She lived 260 miles away in Torquay, and he had never been able to follow her clinical progress.  When Dr Bowman first saw the applicant, he was ‘told’ that the applicant experienced a relapse of the symptoms of PTSD.  He thought the symptoms of sweating, anxiety and irritability could be due to the withdrawal from venlafaxine.  In particular, Dr Bowman never witnessed ‘the so-called flashbacks’.  His view was that there was a severe basic fault in the biological make-up of the applicant, ‘this awful feeling’ of ‘a woman in a man’s body’, which had led to the transsexualism and produced a person of ‘immense psychological vulnerability’.  Dr Bowman certainly regarded the applicant as depressed when he advised her GP on suitable medication in the second half of 1997.

16. Dr Bowman agreed that the applicant had a ‘narcissistic type personality’, which he explained as follows:

    ‘This is a personality disorder that arises in somebody who has often been physically or mentally abused, somebody who can’t trust other people, has been rejected often by other people, hasn’t had the normal loving as a child and hence withdraw into themselves.  It’s really a damage limitation if you like, they withdraw trust, and as a result they remain quite immature and quite demanding.  If their wishes aren’t met they get petulant and irritable.  And it’s really, it’s a form of personality that hasn’t developed and matured into an adult.’

1. Dr Bowman did not recall the applicant telling him of two traumatic incidents during service in the RN.  The ‘anomalies’ noted in his final report did cause him to question whether the applicant suffered from a psychiatric condition.  Dr Bowman agreed that, if the applicant had been sleeping for the past six years in a bedroom under two skylights, what he had been told by the applicant about the effect of her hearing rain ‘pattering’ on windows was not true.

2. Dr Bowman said that he did not have details of the Kimbla incident, but that he ‘assumed this huge wave submerged the ship’.  He considered that ‘we would all feel traumatised by such an event’.  Dr Bowman said that the applicant developed symptoms because of underlying faults in her character and personality.  The Kimbla incident was a contributing factor to her mental state.  If the trauma of that incident had significant psychological or psychiatric effects, Dr Bowman agreed that it would be likely to have an effect upon the applicant’s social and vocational life.  He said, however, that her continuing in the Navy provided the external discipline and support that her inner personality lacked.  Dr Bowman explained that ‘control and discipline and command structure… help people with a disintegrated ego’ and that it was ‘in emotional interpersonal situations’ that such a person would exhibit problems.  Dr Bowman said that in a person with a narcissistic personality another stressor was usually required to produce severe symptoms of depression.  He agreed that the threat of discharge from the Navy, being charged with indecent dealings with one’s own child and the prospect of going to prison were such stressors.  Dr Bowman said that many aspects of the applicant’s life were potential stressors.  He instanced factors such as the gender dysphoria, the traumatic break-up of her marriage, the problems following her operations and the relationship with Ms Stevens.

3. On 23 December 1998 the applicant was taken to Torbay Hospital by ambulance following an alleged overdose.  She was transferred to Plymouth where she was kept until discharged on 29 December 1998.  The discharge report noted that the applicant was not clinically depressed and that the overdose was secondary to pain experienced as a complication of her sex change operation.

4. Mr MacDermott referred the applicant to Mr Paul Abrams, a consultant urologist in Bristol, for her urethral problems.  Mr Abrams, in turn, suggested Tony Mundy, a professor of urology at the Middlesex Hospital in London.  She was admitted as an in-patient at Torbay Hospital for an operation in March 1999.  An overdose assessment made afterwards noted her ‘desperation’ due to extreme physical pain connected with surgical problems dating back to 1994.  She was referred to Dr Judith Norman, a consultant anaesthetist, who conducted a pain clinic.

5. In August 1999 the applicant was again admitted to Torbay Hospital following an alleged drug overdose.  She was assessed by the senior house officer and subsequently referred to Dr Robert Horvath, a consultant psychiatrist.  Ms Stevens was also one of Dr Horvarth’s patients.  He saw the applicant for the first time on 2 September 1999.  A copy of his subsequent letter to Dr Fearnley is in evidence together with a copy of a report from Dr Horvath to the applicant’s solicitors dated 21 November 2000.  In addition, excerpts from other reports by him are included in other documentary evidence.  Dr Horvath also gave evidence by video link.

6. At the first interview Dr Horvath noted that an appointment had been made for the applicant to see the clinical psychologist, Lyndall Wallace, on 22 November 1999.  Dr Horvath reported to Dr Fearnley his impression that the applicant was suffering from symptoms consistent with PTSD and remarked that, whilst the applicant described depressive symptoms, she suffered from pain symptoms in relation to her urological system and previous surgery.  Dr Horvath commented on the applicant’s current drug therapy, he noted that she was to be assessed by Ms Wallace, and he also referred her to a day treatment centre for an anger management course.

7. In his oral evidence Dr Horvath emphasized that he had not been asked to see the applicant specifically to give a diagnosis.  His understanding was that the diagnosis of PTSD had been accepted and that the best way of treating such a condition was a ‘combination of medication and psychological treatments’.  Dr Horvath saw his role as checking the applicant’s medication and coordinating the patient’s overall management within a multidisciplinary  team.  The referral to Ms Wallace was aimed at providing psychological treatment for PTSD and her other problems.  Dr Horvath stressed that at no stage had he given such treatment to the applicant.

8. Dr Horvath reviewed the applicant on three occasions in 1999, at the last of which he noted that she had seen Ms Wallace the day before and was to see Dr Robert Dyer for an endocrine review.  He recommended no change in her psychotropic medication.

9. At review on 20 January 2000 the applicant told Dr Horvath that she had had difficulties with pain following an infection over Christmas, that her daily dosage of an analgesic had been doubled, that the pain caused difficulties in walking, and that both she and Ms Stevens were ‘struggling at home at present’.  The applicant also said that she had had three appointments with the health psychology team as part of the assessment process.  Dr Horvath noted that she was to see Mr MacDermott the next week.

10. A multidisciplinary review by Dr Horvath, a social worker and a community psychiatric nurse was held on 30 June 2000 at Waverley House.  The meeting was attended by both the applicant and Ms Stevens.  The applicant said that she was to see Dr Norman at the end of August and Mr MacDermott to review her urological situation next Wednesday.  She told the meeting about her current medication, her recent re-catheterization which was ‘painful’ and her difficulty swallowing solid food.  The applicant described her mood, including feelings of anger, and said that she felt ‘like a burden’ to Ms Stevens, who had problems with her knees, was arthritic and had suffered a stroke.  Ms Stevens reported that the applicant seemed better since the community psychiatric nurse had been visiting weekly, and she also expressed ‘appreciation for the home care assistance the couple was now receiving’.  When the topic of respite care was discussed, the applicant suggested that Ms Stevens needed respite, and it was agreed that the social worker would arrange help for Ms Stevens to attend aqua-aerobics on Wednesday afternoons.

11. Dr Horvath subsequently received a copy of the assessment report dated 24 July 2000 from the clinical psychologist, Lyndall Wallace, to Dr Murray.  He noted her conclusion:

    ‘I consider Romana’s presentation is not simply a matter of PTSD following a trauma but rather that her presentation is complex and multi-faceted.  I included details of her life history to the extent that I have, because it would seem to me that her trauma does not just relate to an incident in 1979 but, in fact, precedes that going back to her neglectful critical childhood.

    I am of the opinion  that there are significant personality issues here, and her adjustment to her physical health problems is largely determined by these.

    I am also of the opinion that Romana needs help with understanding the link between her childhood, and her subsequent difficulties re her relationship with herself and, indeed, others.

    I do not consider that her presentation is about difficulties accepting the disability.  I think there are difficulties accepting all sorts of aspects of her life, including, indeed the gender change operation.

    My assessment of Post Traumatic Stress did not reveal a full-blown disorder but rather that she has characteristics of PTS.

    I know that Romana was angry about my departure from Torbay Hospital and I attempted to address this the best way I could.  The only thing that I can suggest in the light of my departure is that she would be referred to somebody for cognitive-analytical therapy as a means of giving her some sense of herself.  This sense of self needs to be linked to her childhood.’

12. Following a home visit by the community psychiatric nurse, Dr Horvath discussed with the applicant her agitated mood and prescribed phenothiazine medication for her.  Dr Horvath warned the applicant of possible side effects, including postural difficulties.

13. A further review meeting was held on 27 September 2000.  Dr Norman was also present on this occasion.  The applicant complained of feeling ‘very annoyed and frustrated’, memory difficulties, difficulty in executing fine manual tasks and a tendency to stumble.  She described her reactions to the medication.  The applicant said that she was in pain all of the time and that a trial of a local anaesthetic nerve block in August had made the pain worse.  In particular, she feared her three monthly catheter change.  The applicant expressed her dissatisfaction with her five sessions with Ms Wallace.  Ms Stevens reported that the applicant was becoming obsessed with paedophilia and was ‘questioning the gender change’. The applicant acknowledged that she would like further help in this area.  Actions planned at the meeting included reducing the applicant’s medication, referring her to an art psychologist and for a full occupational therapy assessment, requesting an increase in home care help from the present level of three hours per week, organizing support for Ms Stevens to attend exercise programs and continuing to have the community psychiatric nurse visit the couple regularly to offer support.  It was also noted that the applicant had an appointment with Dr Norman in October to review her pain control situation.

14. Dr Horvath last saw the applicant at a multidisciplinary review meeting on 17 May 2001.  Dr Horvath’s view is that she does not have a full-blown personality disorder, although she appeared to have some of its characteristics, such as narcissism.  He agreed that the applicant’s mood symptoms were common to many psychiatric conditions.  When seen by Dr Horvath, the applicant was generally in a fairly distressed state with depressive and anxiety symptoms.  The pain and disabilities from the sex change operation were an important aspect of the applicant’s problems, but Dr Horvath did not directly deal with pain.  He did deal with the emotional disturbance in the relationship with Ms Stevens who was also his patient.

15. Dr Horvath’s evidence contains references to the extensive treatment by other health professionals.  The applicant’s suprapubic catheter must be changed every three months.  In addition to her urological problems, other records in evidence mention ongoing gastric problems, for which Dr Teague has referred her to Mr Stephen Wilkinson, a consultant in general surgery at Derriford Hospital, Plymouth.  Dr Richard Paisey is another endocrinologist who has had a hand in the applicant’s hormone therapy.  In addition, the MacMillan Nurses at Rowcroft Hospice have provided the applicant with advice and assistance for her pain.

16. As a final note to this record of extensive treatment, I should mention that the applicant continues her peregrinations.  She went on a week’s holiday in Malta in December 1999 and a fortnight’s holiday in Tunisia in November 2000. 

    Expert Evidence

17. I have described the evidence relating to the applicant’s treatment since August 1990, and I have also summarized the effect of the evidence given by those treating doctors who have been called as witnesses.  Each side in this case also arranged to have the applicant examined in the middle of 2001 for the purposes of this case by experts who have been cross-examined on reports they have prepared.

18. The applicant’s solicitors qualified two psychiatrists, Dr Duncan Veasey in London and Dr Jonathan Phillips in Sydney, together with the Sydney consultant psychologist, Dr Alex Gilandis.  Dr Veasey accepted the premise that the applicant suffered PTSD.  He was concerned to weigh the effect of her longstanding problem with gender dysphoria and the impact of PTSD upon the family stressors to which she was exposed.  It should be noted that Dr Veasey had a background of service in the RN, and he thought it at least debatable whether the applicant’s dysphoria constituted a formally diagnosable personality disorder.  Dr Gilandis thought that the applicant’s PTSD was at least at a moderate level and chronic.  He also thought it plausible that the applicant’s previous stressors and identity conflicts may have made her vulnerable to decompensate if faced with major trauma.  Dr Gilandis’s psychometric testing of the applicant produced scores within severe depression and severe anxiety ranges.

19. Dr Phillips’s evidence was most helpful and instructive.  He was, quite properly, ready to acknowledge gaps in the history that he had taken from the applicant. In particular, Dr Phillips acknowledged his limited information about the applicant’s ongoing urological problems and the consequent significance of associated pain problems.  (Dr Veasey acknowledged, perhaps too casually, that much of the applicant’s formidable medication related to physical problems subsequent to her gender reassignment surgery.)  Dr Phillips focussed on the connection between diagnosed PTSD and the disturbance of her fragile gender balance.  He thought that this involved a move to compulsive cross-dressing which culminated in Dr Haertsch’s operation.

20. Dr Phillips considered it highly unlikely that the applicant experienced post traumatic psychological problems after any electrical fire on Ajax.  He did think that the applicant was rendered psychologically unstable by the Kimbla incident, thus causing her with her gender identity disorder to proceed slowly but inexorably to hormonal and surgical reassignment.  Dr Phillips allowed that the applicant’s significant depression symptoms over the years had their origin in a number of other areas.  But his acceptance of the PTSD diagnosis by the RAN consultants appears to rest on this passage in his report:

    ‘Ms Mewett identified psychological symptoms at least from November 1979.  Her prominent symptoms at the time included increasingly aggressive behaviour (directed at her then wife), recurrent flashbacks of the incident (in response to various cues linked with the initiating trauma), impaired sleep (initial insomnia, repeated wakenings, morning exhaustion, repeated nightmares always with violent themes), difficulties associating with others, excessive vigilance to potentially dangerous situations and a tendency to drink more heavily.  Ms Mewett was unable at the time to make a coherent link between her various symptoms and post traumatic stress disorder.  She did not seek advice or treatment from naval medical authorities.’

21. The Commonwealth also had the applicant examined by two psychiatrists, both from Sydney, Dr David Bell and Dr Rod Milton, and by a Sydney clinical psychologist, Dr Fernando Roldan.  Dr Bell had previously seen the applicant in London on 11 November 1997.  He considered that she had suffered no psychiatric injury as a result of the Kimbla incident.  Dr Bell did think that the applicant had a lifelong personality disorder, but that her gender dysphoria was not aggravated by that incident.  He identified a low self-esteem in the applicant coupled with an intense narcissism reflected in a feeling that she has never been appreciated.  Dr Bell thought the gender reassignment misconceived because it could not solve such psychological confusion.

22. Dr Milton’s opinion was that the applicant did not suffer from PTSD.  He based his opinion on the extraordinarily comprehensive material made available to him by the Commonwealth comprising some nine lever-arch folders.  Dr Milton’s thorough review of this material led him to make such robust comments that counsel for the applicant submitted that his views should be discounted as unduly partisan.  Since this submission was made, I feel obliged to say that I do not accept it.  Dr Milton did express a scepticism about PTSD, but I think that he accepted the diagnostic criteria for such a condition could be met.  He was very critical of the recommendation for reassignment surgery.  Dr Milton thought that the applicant had a personality disorder with prominent narcissistic features.  He concluded in his report:

    ‘Ms Mewett’s current physical and emotional problems are iatrogenic.  They are a consequence of disappointed expectations of the sex change operation and from the serious complications of surgery and the requirement that she take an extraordinary range and quantity of addicting and potentially harmful drugs.  In particular, the suprapubic cystostomy places her in a rather worse situation than someone with a permanent colostomy.’

23. The applicant’s ‘long standing personality disorder’ was also central to Dr Roldan’s opinion.  He said that his psychometric testing of the applicant achieved scores associated with possible malingering and over-reporting of both physical and psychological symptomatology.  In particular, Dr Roldan thought that the applicant’s contrived and self-serving reporting style was adopted as a result of her indoctrination by Ms Stevens.  He did not, however, downplay her chaotic family life, gender identity problem and significant physical problems.

    Conclusion

24. The law on liability for mental trauma is stated in Tame v New South Wales (2002) 76 ALJR 1348. The High Court confirmed the position that recovery at common law was not available for any form of mental distress, but was restricted to a recognized psychiatric condition. The judgment in Tame establishes that a duty of care to avoid mental harm will be owed to a plaintiff only if it was foreseeable that a person of ‘normal fortitude’ might suffer mental harm in the circumstances of the case if care was not taken.  This test does not require a plaintiff to be a person of normal fortitude in order to be owed a duty of care.  It only requires it to be foreseeable that a person of normal fortitude in the plaintiff’s position might suffer mental harm.  In this sense, being a person of normal fortitude is not a precondition of being owed a duty of care.

25. In this case the applicant claims to have suffered PTSD.  This is a recognized psychiatric condition.  The test for the existence of a duty of care laid down in Tame bears on the nature of the traumatic event which is called a stressor in the diagnostic criteria for PTSD.  In my view, it is quite foreseeable that a person of normal fortitude in the wheelhouse of Kimbla might suffer mental harm in the circumstances disclosed in the dry language of the RAN inquiry report.  The heavy list and the water sluicing down the side of the ship, combined with the delay in recovering from the list, might well put a person of normal fortitude in such fear of capsize and drowning that she might suffer mental harm.  The admission of the breach of duty of care by the Commonwealth, which was made in this case prior to the decision in Tame, thus poses no problem in its resolution.

26. The applicant has given evidence of re-experiencing the Kimbla incident in various ways.  These are quite dramatic accounts.  I do not need to restate them  The problem for the applicant is her total silence on the topic in so many clinical situations over the intervening years where it would have been natural to mention what she said were recurrent and intrusive recollections of the event.  I find the suggestion that the applicant was observing some kind of naval tradition of stoicism quite fantastic.  Her record shows a readiness to consult RAN medical services over all kinds of personal problems and avail herself of treatment provided, whether it be drug therapy or a vasectomy.  I have no doubt that the applicant has a long standing personality disorder but, equally, I remain unconvinced that events on board Kimbla had any effect upon her psychological equilibrium.  Her performance evaluation reports in the RAN after the event reveal no impairment in occupational functioning.  Moreover, she was able to assimilate new skills in her training.

1. The applicant revelled in her cross-dressing and other deviant behaviour.  It may have caused Shirley and the children distress, but it caused her none.  John’s sexual abuse of the applicant as a child could also have given rise to all kinds of symptoms, but it does not appear to have done so.  When Shirley first spoke to the welfare authorities in the middle of 1990, domestic turmoil must have been intense, and yet still there was no mention of Kimbla.  First, there was ‘mad’ Shirley, then, when the ‘sanctuary’ was revealed, there was the childhood sexual abuse, and at this point in a series of inconvenient disclosures, there came Kimbla when Ms Stevens stayed the night.  Later again, in May 1991, when the photographs were found and Shirley was vindicated, there was depression and the ‘stressors’ became once more the family members; and finally, in 1992 Kimbla reappeared as the applicant was leaving the RAN on her way to becoming a woman and going back to England with Ms Stevens.  The excuses kept changing, but by the end the applicant had given up.

2. It is quite impossible to avoid assessing the central role of Ms Stevens in forming a view about the applicant’s credibility.  It was she who first ‘diagnosed’ the PTSD and who has kept the applicant ever since in a world of PTSD and other psychological jargon.  Ms Stevens’s involvement in the applicant’s treatment was entirely inappropriate.  It is quite clear that Dr Gidley deferred to her initial diagnosis far too readily and that the RAN was duped in entrusting her with the applicant’s PTSD ‘therapy’.  No coherent evidence was given by Ms Stevens or the applicant about this therapy.  There was a bizarre episode at Alan’s birthday party on 2 November 1990 when Ms Stevens ‘demonstrated’ the applicant’s distress to Julie.  Otherwise it seems to have consisted of ventilatory sessions, providing ‘peer support’ for others and ‘debriefing’.  Meanwhile, Dr Gidley’s own treatment of the applicant for transvestism was being undermined by Ms Stevens.  I have no doubt that Dr Gidley was gulled by Ms Stevens to the extent that he had any contact with her.  When such deception became conscious, I cannot say, but at some point Ms Stevens’s early sympathy and partisanship for the applicant transmogrified into love and affection.  Her dual relationship intensified to the point where Dr Gidley, unbeknown to him, had no hope of making valid clinical judgments.  Essentially every other treating doctor, including Dr Wallace despite his denial, simply accepted Dr Gidley’s diagnosis.

3. What I have said represents a harsh criticism of Ms Stevens.  Counsel for the applicant submit that such adverse comment would require a foundation in facts found to a very high degree of satisfaction.  I think that submission misconceives their task.  Ms Stevens faces no charges of any kind in this proceeding.  She is not on trial.  But her involvement and influence must be taken into account in deciding whether I can believe the applicant.  I do not believe the applicant’s story about flashbacks, nightmares and the whole panoply of symptoms upon which, quite correctly, Dr Phillips says the diagnosis of PTSD depends .  Undoubtedly the applicant has exhibited symptoms of anxiety or increased arousal, but these were present before the Kimbla incident.  Her treatment of Julie as a baby is an alarming instance.  I find that the applicant did not suffer a psychiatric injury as a result of the Kimbla incident and that that event did not cause any exacerbation of any pre-existing psychiatric disorder.

4. The applicant may well be incapacitated for work.  However, if she is, it is impossible to say to what extent that is as a result of a psychiatric disorder or a consequence of the effects of her gender reassignment surgery.  The evidence of treatment in England has been compartmentalized in her case so that it is confined to psychiatric treatment.  However, as my earlier outline suggests, there are a great many doctors involved in her treatment from whom there has been no evidence.  Apart from one very short and relatively uninformative report from Mr MacDermott, it is necessary to plough through the patient records from the Parkhill Medical Practice and the Torbay Hospital to get some idea of the applicant’s ongoing problems.  Certainly Dr Horvath does not purport to be treating the applicant for PTSD.  The opinion of Dr Milton is, in my view, most likely correct.

5. The applicant has failed to establish that she suffered any damage as a result of the admitted breach of duty of care.  Her action accordingly fails, and the Commonwealth is entitled to a verdict in its favour.  The applicant must pay the costs of the proceeding.

I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:            1 August 2003

Counsel for the applicant:	D T Kennedy SC with I F Butcher
Solicitors for the applicant:	Szekely & Associates
Counsel for the respondent:	P S Jones with A P Coleman
Solicitor for the respondent:	Australian Government Solicitor
Dates of hearing:	10-14, 17-21, 24-27 September 2001 7-8, 11-15, 18-19 February and 25 November 2002
Date of judgment:	1 August 2003