Read and Military Rehabilitation and Compensation Commission (Compensation)
[2017] AATA 1109
•19 July 2017
Read and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 1109 (19 July 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2015/4419
Re:Allan Read
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Senior Member J Sosso
Date:19 July 2017
Place:Brisbane
The Tribunal affirms the decision under review.
................................[Sgd]........................................
Senior Member J Sosso
CATCHWORDS
VETERANS’ ENTITLEMENTS – whether Applicant is entitled to compensation for claimed condition - where Applicant witnessed the immediate aftermath of an electrocution incident - adjustment disorder – PTSD - whether late onset PTSD can be a valid diagnosis - whether the Applicant’s ailment developed as a result of electrocution incident – decision under review affirmed
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971
Commonwealth Employees’ Contribution Act 1930
Safety, Rehabilitation and Compensation Act 1988
CASES
Bell Group Ltd (in liq) & Ors v Westpac Banking Corporation & Ors [2008] WASC 239
Dingwall v Commonwealth of Australia [1994] FCA 1099
Military Rehabilitation and Compensation Commission v May [2016] HCA 19;
257 CLR 468
Stingel v Clark (2006) 226 CLR 442
Wright v Commonwealth of Australia [2005] VSC 200
Zickar v MGH Plastic Industries (1996) 187 CLR 310
SECONDARY MATERIALS
Diagnostic and Statistical Manual of Mental Disorders, 5th ed, published by the American Psychiatric Association
Horesh et al, ‘The clinical picture of late-onset PTSD: A 20 year longitudinal study of Israeli war veterans’, Psychiatry Research 208 (2013) pp. 265- 273
REASONS FOR DECISION
Senior Member J Sosso
19 July 2017
INTRODUCTION
Mr Allan Winfield Read (the Applicant) served in the Australian Army from
24 January 1966 until 24 January 1986 having ultimately achieved the rank of Warrant Officer Class 1 – Exhibit 2 pp. 16 and 21. Subsequently the Applicant served in the Australian Army Reserves until finally discharging on 19 May 2008 – Exhibit 2 pp. 16
and 21.
Between 24 January 1966 and 29 January 1970, the Applicant was posted to the Army Apprentice School at Balcombe, Victoria – Exhibit 2 p. 18. He was then posted to Bandiana, in Victoria and tasked with rebuilding equipment for the Vietnam War, as part of his apprentice training. In 1971 he was transferred to the SAS Regiment in Western Australia, and underwent combat training. The Applicant was promoted to Sergeant on
1 September 1972, Warrant Officer 2 in August 1976 and finally, Warrant Officer 1 on
10 September 1979 – Exhibit 2 pp. 18 – 19. He was re-posted to Victoria in 1976 and finally to Townsville in December 1981, where he remained until his discharge.
During his very long defence service the Applicant was awarded various honours and awards, including the Defence Force Service Medal in 1984, the National Medal in 1993 and the Australian Defence Medal in 2006 – Exhibit 2 p. 20.
Following his discharge from the Army the Applicant joined the Queensland Public Service, first in the Department of Industrial Relations and later in the renamed Department of Workplace Health and Safety. He started working as a safety advisor and from 1990 as a machinery inspector. Finally, he was appointed as a “prosecutor”, which term most probably refers to an inspector. He left the public service in 2005 and started his own business: “Safety Training and Consultancy”. He has had no paid employment since ceasing his business in November 2014 - Exhibit 3 para 2.
On 12 April 2010 the Applicant lodged Claim for Rehabilitation and Compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act) – Exhibit 1 pp. 166 – 173.
The claim was for an “adjustment disorder” and was stated to have arisen from an accident on 29 August 1968 when (p. 170):
“six army apprentices were electrocuted when a metal flag pole they were carrying came into contact with the power cables…..the flag pole hit the power lines and they were electrocuted. Two of the apprentice died and four were seriously burned.”
It is not contested that on 29 August 1968 an accident occurred at the Army Apprentice School at Balcombe when six Army apprentices were electrocuted when a flag pole they were carrying came into contact with overhead electricity wires. Apprentices P.K. Russell and A.J.T. Pearce were killed in that incident.
One of the key issues before the Tribunal is whether the Applicant assisted immediately after the fatal accident and was intimately involved in the ultimately futile effort to save the lives of the two fatally injured apprentices. The official records contain no mention of the Applicant’s involvement, whereas the Applicant and some other persons present at the accident scene claim that he was involved.
In the accounts of what occurred on the night of 29 August 1968, some of the witnesses refer to a “Fred Reid”. During evidence, the Applicant testified that he was also known in the Army as “Fred” and “Sandy”. The misspelling of “Read” as “Reid” is a common mistake made by some of Mr Read’s contemporaries in their written statements. Nonetheless when reference is made to a “Fred Reid” it is in fact a reference to “Allan Read”.
There is also misspelling of other people’s names in the various statements. The Tribunal has not corrected these errors as it is clear who the author of the relevant statement is referring to. As an example, Warrant Officer “Gammel” is often referred to as “Gammell”.
On 14 March 2011 the Delegate of the Military Rehabilitation and Compensation Commission (the Respondent) rejected the Applicant’s claim. In doing so the Delegate provided the following reasons – Exhibit 1 T8 pp.206 – 207:
“The contention is that you attended on fellow apprentices who had been electrocuted in a mishap involving a flagpole. You contend that you were involved in the attempted resuscitation of the injured. As communicated to you via your advocate I have located copies of all the relevant paperwork including the coroner’s inquest and statement of eye witnesses and those who attended shortly after the accident. Copies have been made available to you. There is no mention of your name in any of the documents located. While I can place you at the Apprentices College around the time of the accident, I cannot place you at the scene. There is also of course the issue of the passage of time, some 40+ years since the incident. On the balance of probability I am unable to accept liability for the claimed injury.”
On 14 May 2013 the Applicant resubmitted his Claim for Rehabilitation and Compensation for the condition “Adjustment Disorder” – Exhibit 1 T 9 pp. 208 - 215. The Applicant’s account of the incident was substantially the same except that he also added – Exhibit 1 T 9 p.212:
“I attempted to resuscitate one of the lads but was unsuccessful”.
In support of his resubmitted claim, the Applicant annexed a Statutory Declaration of Robert Dean Coventry dated 9 June 2012 and an undated and unsigned statement of the Applicant.
Mr Coventry deposed as follows – Exhibit 1 T 9.1 pp. 216 – 217:
“I was present at a tragic incident at the Army Apprentices School, Balcombe (Mt Martha) in the State of Victoria, on the night of 29 August 1968.
The incident occurred during an annual event, referred to as “Crab Night”, celebrating 100 days before Graduation from the Apprentices School and involved members of ‘C’ Company, who moved the unit flagpole from the Regimental HQ building and intended erecting it at outside the front gates of the school, fronting the Nepean Highway.
I was a member of ‘A’ Company, living in a barracks hut on the opposite side of the Parade Ground to the Front Gates. Our Company Sergeant Major, WO2 William Gammel, had just called a Company parade, at which he requested we ‘calm-down’ our activities.
After the parade, I returned to my hut and was looking out of the window across the Parade Ground, where the flagpole was being erected. There was a bright flash and loud bang and the sudden realization that something had gone terribly wrong.
Along with other members of my hut, I ran across the parade ground to see if I could render assistance.
Although it was dark, the scene was shocking:
·4 apprentices, who had been holding the guy cables, were lying on the ground, with badly burned hands. One of these men, I recognized as Robert (Bob) Beveridge.
·2 apprentices, whom I recognized as Peter Russell and Joe Pierce were lying close to the North wall of the entrance gates. Their hands and feet were horrifically burnt, to the extent that a large portion of these limbs were missing. Their muscles had contracted and both were very stiff.
WO2 Gammel quickly drove his car across the parade ground to provide illumination and then to transport the injured Apprentices to the Regimental Aid Post (RAP). He also started to direct the combined rescue efforts of those staff and Apprentices who were present.
Along with another Apprentice – Roy Bowen, I commenced CRP and EAR on Peter Russell and right alongside of us I noticed Allan Read doing the same thing for Joe Pierce. We continued for what seemed a long time, but could have been 10 to 20 minutes, until a female Nurse arrived from the RAP. I assumed she was brought back in WO2 Gammel’s car after the first trip. At this stage I do not recall the Ambulance being at the scene.
The Nurse quickly examined both bodies and announced that we were wasting our time and should stop treatment. I distinctly remember Allan Read stating that she wasn’t qualified to make that decision and that we would continue until a Doctor was present and made the decision.
Very soon after qualified Medics arrived (perhaps in the Ambulance) and both bodies were moved away. I do not know if they were taken to the RAP or to the local hospital.
Things were a bit hazy after that, but I do remember those of us present at the scene dispersed back to our huts, where in my case a few of us (Lindsay Campbell & John Carpenter) stood at the window looking over the scene and talked about what had gone so wrong.”
The relevant portions of the Applicant’s statement are set out below – Exhibit 1 T 10.4 pp. 230 -231:
“My ambition from the time I can remember was to be in the Army. I was born and raised in South Australia. My family lived in a working class area of Adelaide and we had extended family throughout country South Australia. I applied for and was accepted in December 1965 to join the Army as an Apprentice Fitter and Turner to undertake my apprenticeship at Balcombe, Victoria. On 24 January 1966 I left Adelaide, by train, to travel to Victoria to commence my Army life. I was 16 years of age.
Life for an apprentice soldier during this era was one of bastardisation, very strict obedience to rules and orders. At the end of my second year I was promoted to Apprentice Sergeant to look after 3 huts housing approximately 36 junior apprentices (first years) in my third and final year.
A tradition at the Apprentice School was the celebration of CRAB Day, being 100 days until graduation. Crab was the Roman sign for century. On this night each year the members of the graduating class would run amuck in the camp and generally have fun.
On the night in question in 1968 I was with a fellow fitter and turner, John Sernecki, and under the cover of darkness we were heading to the Metal Trades Wing with a bucket of paste and paint brushes. The Metal Trades Wing was located at the top end of the camp and backed onto Mace Oval and the Nepean Highway. We had just reached our destination and were on the verandah of the Metal Trades Wing when there was a very loud bang and flash which came from the oval. My first thought was that was a good prank. Immediately following were screams coming from the oval. John and I immediately moved from the verandah and ran across the oval towards the Gates where people were gathered.
On arrival we saw other apprentices crying and holding out their hands which had skin missing. Two bodies were lying on the ground near the base of the metal flag pole. I recall telling a couple of the injured persons to sit over to the side as help would be on its way. I turned my attention to the persons lying on the ground. Both were known to John and me. In particular ‘Joe’ who was my offside prop for Balcombe 3rd Grade Rugby Team. I commenced CPR on Joe and others attended to the other person. I was conducting the chest compressions whilst another lad gave the breathes. We were giving encouragement to each other as I thought Joe was responding however it was the contents of his stomach being regurgitated every time I compressed his chest. The atmosphere was hazy with smoke still in the area and the smell of burnt flesh in the air.
After what seemed like a ‘forever’ moment in time Joe was becoming colder and colder. A Regular Army CSM told us to keep going and rub their hands. The ambulance was on its way. I was still applying chest compressions when the Matron and a Padre appeared. The Matron had a feel for Joe’s pulse and merely said he was dead. John would not believe it. So I said we will rub his limbs to keep him warm. As I straightened Joe’s arms out and both of us went to rub his arms, his flesh fell away.
The ambulance finally arrived. I assisted the ambulance driver to place the bodies on the stretcher. I personally lifted Joe up into the ambulance; his head was against my chest. When I released the stretcher handles, Joe’s head rolled back, eyes still opened, skin black. I merely said ‘good by Joe’.
…The following day, a Friday, and it was business as usual. No counselling, no help offered. I went to trade classes as usual. I was informed that my weekend leave had been cancelled and I would not be playing Rugby on Saturday. I had to report to Head Quarters building on Saturday morning along with others. Whilst waiting at Headquarters, a Padre asked us if we were alright and if we wanted to ask him anything. John and I along with several others were directed to make a statement. Having made the statement it was taken from us and typed up. We were then asked to read the typed version and sign it. Both John and I said to the officer that the typed content is not what we said. We were told to sign it. On Sunday morning after breakfast, we had to attend compulsory church parade. At this time I had had enough and protested. I was put in charge of gutter sweeping parties…
I was relieved of my apprentice Sergeant Rank, 19 days prior to graduating. I was charged with providing alcohol to minors and conduct of the prejudice. Still no offer of counselling.”
On 3 November 2014 the Delegate of the Respondent notified the Applicant that in her opinion the evidence submitted did not warrant a formal reconsideration of the claim. The reasons adduced for this opinion were as follows – Exhibit 1 T12 p. 233:
“As I communicated to you at the time of disallowing the original claim, the most telling evidence was that you were not included in any of the very thorough formal reports and investigations following the accident. You were not mentioned by any of the witnesses at the time as taking part in any actions relating to the deceased.
As I also pointed out, part of the reason why the department requests the reason why the claim was not made within the statutory 6 months, is the clear danger of prejudice to the Commonwealth because of the length of time when memories fade or become confused.”
On 12 January 2015 Mr Michael Purcell of Purcell Taylor Lawyers Pty Ltd wrote to the Department of Veterans’ Affairs on behalf of the Applicant requesting a further review of his claim. In support of this request Mr Purcell made the following submission – Exhibit 1 T 13 p. 236:
“On a preliminary basis the writer is of the view the Department relies on false logic to proffer an argument that because Mr Read’s name was not mentioned at the coronial enquiry, he was not there. Others who gave statements were not mentioned in other people’s statements. Indeed many statements say things such as ‘I and others’ or ‘I along with a number of other apprentices’.
The Department has no positive information that places Mr Read elsewhere and since 14 May 2013 the Department has had a Statutory Declaration under the hand of Mr Robert Dean Coventry swearing as to not only Mr Read’s presence but as to his endeavours in trying to save the life of Mr Joe Pierce.
At first blush it strikes the writer that Mr Read has not been afforded the proper opportunity of appealing against the decision of the Department of Veterans’ Affairs.”
Subsequently in a letter dated 15 April 2015 Mr Purcell forwarded to the Department of Veterans’ Affairs two additional statements in support of the Applicant’s claim.
The first of these statements was that of Mr John Albert Willey dated 11 February 2015. Mr Willey’s statement was as follows – Exhibit 1 T 14.1 p. 239:
“I was a 22nd Intake Vehicle Mechanic at the Army Apprentice School Balcombe, from 1967 to 1969 & was in ‘D’ Company in 1968. At the Apprentice school there was a ceremony called ‘Crab Night’, which was 100 days before an intake graduated & in 1968 the21st intake held their ‘Crab’ night in late August.
We were on the parade ground at ‘D’ Company watching all the events that were happening & then saw ambulances go past, we ran towards the direction they headed, but were stopped before we got to the scene. As we approached the word had already spread that during the crab night ceremony certain members of the Apprentice School took a flagpole, which came into contact with the power lines.
The result was 2 people dead & two suffering bad burns, it was common knowledge (whilst I did not see it) that Alan ‘Fred’ Reid did administer first aid to one of the deceased, who I found out the next day was Athol James Pearce, the other apprentice was Keith Russell.”
The second statement was provided by John Charles Carpenter in the form of a statutory declaration which was sworn on 18 March 2015. Mr Carpenter, inter alia, deposed as follows – Exhibit 1 T 14.2 pp. 240 – 241:
“3. It was night time before lights out when a large flash and screaming was heard outside our hut which fronted the parade ground. A number of us rushed outside and saw a number of apprentices strewn on the ground and others warning the power line may have fallen at the front gates. The scene was horrific with a number of burnt and severely damaged bodies, strewn across the area. Some were not moving and appeared beyond help. Within seconds apprentices had commenced providing first aid and CPR, one was Fred Reid, and also Bob Coventry from our hut, a number of others were also assisting. The company duty officer Bill Gammell had been advised and arrived very quickly and took control.
4. WO Bill Gammell was concerned on the time it was taking for the medical staff to attend as he had someone ring them earlier. He then asked for anyone who could drive then ordered me to take his car, which was parked outside the Coy HQ and drive to the RAP which was at the bottom of the camp and get help, this I did. The action was carried out within minutes of the initial accident. I didn’t bring any medical staff back with me, but parked on the parade ground. I don’t remember the exact conversation, but think the medic said something about getting their kit together, the medical staff finally made their way to the accident site in the Ambulance, after what appeared to be an eternity.
5. The light at the time was very poor and I would not be able to say with any certainty who was involved except for Fred Reid and Bob Coventry. Fred and I were at the same trade and lived and trained together the previous year 1967, and I knew his voice as he spoke prior to him performing CPR on one of the severely injured apprentice, I could not recognise due to his injuries and low light. Bob Coventry and myself lives in the same hut in 1968 and ran to the accident site together. Bob commenced assisting in CPR on another apprentice with someone else.”
On 13 August 2015, in a lengthy and carefully drafted decision, the Delegate of the Respondent affirmed the determinations of 14 March 2011 and 3 November 2014. Ultimately the Delegate formed the view, after considering all the material before her, that the Applicant was not involved in the aftermath of the August 1968 fatal accident and, further, she was not satisfied that the Applicant provided resuscitation to Mr Pearce. Consequently, she was not satisfied, on the balance of probabilities, that the claimed condition of Adjustment disorder arose out of or in the course of the Applicant’s military employment. Finally, she was not satisfied, on the balance of probabilities, that the Applicant’s military employment caused/contributed to the claimed condition to a material degree – Exhibit 1 T16 p. 247 at pp. 258 – 259.
On 25 August 2015 the Applicant filed an Application for Review of the above decision – Exhibit 1 T 1 p. 7.
A hearing was conducted on 13 – 14 June 2017. The Applicant was represented by Mr Honchin of Counsel and the Respondent by Ms Slack of Counsel.
The Applicant gave evidence and was subject to cross-examination. In addition, oral evidence was given by Mr John Carpenter, Mrs Helen Read, Mr John Willey, Mr Holt McMinn, Mr Robert Coventry, Dr Sarah Beaney, Mr Neil McLeod and Dr Johan Scheepers.
The Applicant also provided the Tribunal with a statement dated 13 November 2015 from Mr Holt Frederick Noel McMinn – Exhibit 6. This statement while shedding little light on the Applicant’s involvement in the events of 29 August 1968 contains key information on the events of 29 August 1968 and subsequent investigations.
Mr McMinn also gave evidence by telephone on 14 June 2017. Mr McMinn did not know the Applicant at Balcombe. He is not a friend of the Applicant. He was only contacted by the Applicant in 2015 – 47 years after the event – to give a statement. His Army experience even by 1968 was extensive (as will be outlined later). In short there is no reason to doubt the veracity of his recollections of 29 August 1968. He has nothing to gain or lose by giving the account that he has. Insofar as elements of that account are somewhat controversial, they need to be viewed within the contextual prism just outlined.
ISSUES
Ms Fiona Dempsey, Solicitor for the Respondent, who prepared the Respondent’s Statement of Facts, Issues and Contentions (Exhibit 14) contended (para 16) that the primary issue before the Tribunal is whether the Applicant is entitled to compensation for his claimed condition of adjustment disorder.
In determining this issue, it was further contended (para 17) that the Tribunal needs to consider the following matters:
(a)Whether the Applicant witnessed the immediate aftermath of the electrocution incident on 29 August 1968, and in particular, whether he administered first aid to the deceased Apprentice Pearce;
(b)The correct diagnosis of the Applicant’s current psychiatric condition and the date of onset of this condition; and
(c)Whether the Applicant’s psychiatric condition developed as a result of the 1968 electrocution incident.
The Tribunal agrees that this is a useful outline of how to deal with the issues in contention. Clearly the correct diagnosis of the Applicant’s ailment is critical to the disposition of this matter, but that diagnosis and all other matters are ultimately and fundamentally predicated on the determination of one key question of fact. That question is outlined in paragraph (a) above, for without a finding that the Applicant’s version of events of the aftermath of the electrocution incident, then all of the other questions become redundant.
THE APPLICANT’S INVOLVEMENT IN THE 29 AUGUST 1968 ACCIDENT
The Delegate in the reviewable decision, and Ms Slack in these proceedings, place great reliance on the statements taken from witnesses to the accident in the period 1968 to 1969 which were prepared for the purpose of the coronial inquests into the deaths.
The Tribunal has been provided with the records of the coronial inquest into the death of Athol James Thomas Pearce conducted by Mr H.W. Pascoe, Coroner.
The Coroner found (Exhibit 1 T 7.5 p. 185) that Mr Pearce died from “the effects of electrocution when a metal flag pole he was assisting to shift and erect accidentally came into contact with an overhead high voltage conductor.”
Witness statements were taken from the following persons:
(a)Garry Philip Byard;
(b)Jeffrey Allan Herd;
(c)Edward John Beveridge;
(d)William Lawrence Gamel;
(e)Robert Francis Goudie;
(f)Matthew Cameron Arthur;
(g)Trevor Charles Christiansen;
(h)Colin David Noonan;
(i)Robert Walter Walsh.
Statements (a) – (f) were taken on 20 March 1969 and the remaining three statements at various dates in October 1968. In short, the statements were taken, at the earliest more than a month after the accident, and in the case of the majority, more than six months after the accident.
Although each of the statements presents a unique perspective on the accident, all have one common feature. None of the persons mentions the Applicant being present at the scene of the accident.
Apprentices Bayard and Herd were at the Memorial Gates when the accident occurred. Apprentice Herd ran to the Company Orderly Room and informed Warrant Officer Gamel and stayed there. Apprentice Bayard ran to the Parade Ground and covered two apprentices with blankets. He deposed (Exhibit 1 T 7.5 p.189):
“They didn’t look very well, so I started giving resuscitation to the best of my ability, until Sgt. Maj. Gamel and several other staff members arrived.”
Warrant Officer Gamel’s statement is consistent with that of Apprentice Herd. WO Gamel stated (Exhibit T7.5 p. 196) that he was informed of the accident by Apprentice Herd and immediately went to the scene where he saw five apprentices on the ground and one staggering about. He stated:
“I went to App Russell, examined him, carried out resuscitation and I announced he was dead. I ordered App. Byard to carry out mouth to mouth resuscitation. I then went to App. Walsh, who was sitting up, examined him. He appeared to be reasonably normal, and then I examined App. Pearce and carried out resuscitation on him. He appeared to be dead. I ordered that the people who were conscious were placed in care and taken to the RAP, which was done.
I then ordered several apprentices, including Cpl. McMinn to carry out further mouth to mouth resuscitation on Apprentices Pearce and Russell. The ambulance arrived and they were transported to Medical Centre. It was dark the ground was damp.”
The Apprentices who were carrying the flag pole and who gave statements were Apprentices Beveridge, Christiansen, Noonan and Walsh.
Apprentice Walsh’s statement is consistent with WO Gamel, as he stated (p. 204) that he lost consciousness and when he awoke he “staggered around and was then taken down to the R.A.P with Apprentice Christiansen.” There is no mention in this statement of the presence of any named Apprentices.
Apprentice Christiansen’s statement is also consistent with that of Walsh. He stated (p. 202) that he lost consciousness after the flag role connected with the overhead electricity wires and “when I came too, I went with Robert WALSH to the Medical Centre where I was treated for burns to the hands and feet”. Again, there is no mention of other persons who were assisting the injured apprentices.
Apprentice Noonan’s statement, however, does contain information about the accident scene, and again is consistent with WO Gamel’s account (p. 203):
“I must have been knocked out and when I came to PEARCE and RUSSELL were still on the ground and Warrant Officer GAMELL was supervising medical attention for PEARCE and RUSSELL by using mouth to mouth resuscitation and external heart massage, trying to revive them. Bob BEVERIDGE and myself got into a car and were driven to the medical centre. When I arrived there CHRISTENSON AND WALSH were already there.”
The final statement is that of Apprentice Beveridge. So far as is relevant, he said (p. 193):
“Suddenly there was a flash and I saw red and yellow sparks everywhere. It would have been a couple of minutes later when I woke up and I was against the wall, the grass was burning and I was on top of someone. There were some other Army apprentices there and I told them to go and get help.
A couple of minutes later Sergeant Major Gamel and others arrived and I was taken to the R.A.P.”
Ms Slack, on behalf of the Respondent, accepts from these statements that (Respondent’s Outline of Submissions – Exhibit 18 at para 21):
(a)The incident occurred;
(b)Pearce and Russell were given medical attention;
(c)Medical attention included mouth to mouth resuscitation and external heart massage;
(d)Apprentices administered that treatment on Apprentices Russell and Pearce; and
(e)Apprentices Pearce and Russell were transported to the Medical Centre by Ambulance.
As Ms Slack correctly contends (para 22), the only real issue is whether the Tribunal should be satisfied on the balance of probabilities that the Applicant was one of the Apprentices administering assistance to Apprentice Pearce in the manner described.
Ms Slack also concedes (para 25) that the Applicant’s oral testimony on 13 June 2017 was consistent with his written statement outlined previously.
The total absence of any reference to the Applicant in the contemporaneous statements of the individuals who were intimately involved in the events immediately following the accident is not, of itself, fatal to the Applicant’s version of events. However, having regard to the central role that the Applicant claims he played in the aftermath of the accident, the absence of any reference to him by Warrant Officer Gamel is, at first blush, a significant omission.
However, when dealing with events that occurred almost 50 years ago, when the mists of time cloud memories and subtle changes morph into the accounts, it is not surprising that there is not total consistency in the accounts of the various participants.
In addition, the accuracy of some of the account given by Warrant Officer Gamel is contested by one of the key participants (Mr McMinn), importantly an experienced (at that time) enlisted soldier who gave convincing oral evidence to the Tribunal.
The Tribunal was greatly assisted in this matter by observing and listening to the personal accounts of the events of 29 August 1968 by the various witnesses.
First, the Applicant testified that he was not the first Apprentice to arrive at the scene of the accident. He said he came from one direction and others came from different directions. The Applicant testified that he was the first person on the scene to provide CPR to any of the accident victims and that he was ordered by WO Gamel to remain at the scene and keep the unconscious victims warm. He also testified that it was because he was an Apprentice Sergeant that he stayed there.
There was evidence given about the presence or otherwise of army nurses and what may or may have been said and done by those nurses. However, the key element of the Applicant’s version of events is that he was one of the first people at the scene of the accident, that he performed CPR on Apprentice Pearce, that he was ordered to remain at the scene by WO Gamel and that he assisted in lifting the body of Apprentice Pearce into the Army Ambulance. In the process of lifting Apprentice Pearce into the Ambulance, according to the Applicant, Pearce’s head fell back into the Applicant’s chin, with his eyes still open and head burnt black with skin falling off.
Also there was some dispute about whether the Applicant gave a statement for the purposes of an Army Board of Inquiry. The Tribunal’s attention was drawn to a small article in the Canberra Times of 30 August 1968 which refers to such an Inquiry.
The Respondent made due inquiries but has been unable to locate either a statement of the Applicant given in 1968 or any record of the Army establishing a Board of Inquiry into the accident. Rather, Ms Slack contends that the only inquiry that was convened was the Victorian coronial inquiry and there is no record of any statement of the Applicant being produced to that inquiry – Exhibit 18 paras 27 and 28.
The possible existence of some Army investigation is strengthened by the evidence provided by Mr McMinn. He specifically recalled such an Inquiry being established. He stated – Exhibit 6 para 11:
“11 On the following Saturday or Sunday I was called before a Military Inquiry. There were three officers on this board one of which was an ex-SASR officer. It was quite clear that they were looking to put the blame on the lowest ranked person in the chain which was me but the SASR pulled me aside and advise me that he would look after me and ensure that I got a fair deal. Prior to this enquiry WO2 Gamel approached me and advised me not to say too much about the actions of Major Wallace and the Matron and any inference about the RSM’s orders on the day of the accident. WO2 Gamel made it quite clear that if I made any derogatory comments it would affect my career prospects. I advised him that I was going to tell exactly what I saw and knew about events prior to and during the accident. I do not recall making a written statement but I full believe this Inquiry was recorded and is on the record somewhere.”
The Tribunal has no reason to disbelieve that the Applicant gave a statement in 1968, and his account of giving such a statement in difficult circumstances in consistent with the account of Mr McMinn.
It is not necessary for the Tribunal to make a finding on the existence of a Board of Inquiry. The accounts of the Applicant and Mr McMinn are broadly consistent, and, on the balance it is likely that the Army did carry out its own investigations prior to the coronial inquest. It is unlikely that those inquiries took the form of an official Board of inquiry, because if it had reached that level of importance there would be some record of its existence. However, the Tribunal finds no reason to disbelieve the Applicant’s account of him being interviewed and the overall context of how the interviews were conducted.
There is no official evidence before the Tribunal as to what steps either the Army or the Victoria Police instigated following the accident.
The majority of the statements were taken on one day (20 March 1969) by the Coroner and in most cases there are handwritten notes of questions that were asked of the various witnesses either by a Sergeant Flynn or by the Coroner himself.
The statements taken in October 1968 were in the form of Victoria Police Statements.
It seems unlikely that immediately following the accident the Victoria Police only interviewed three persons, or that the Army did not instigate its own preliminary inquiries. It is in that context that the view can readily be formed that the Applicant would have been interviewed and given a statement. What became of that statement, or indeed the records of any interviews with other Apprentices, is impossible to determine 49 years later, and with the vast majority of the participants now deceased.
One omission from the contemporaneous statements is curious.
Warrant Officer Gamel names three persons who were present at the accident scene: Apprentices Herd and Byard and Corporal McMinn.
Corporal McMinn played a key role in the events post the accident, and until Gamel’s arrival was the most senior serving army soldier at the scene.
Yet despite the key role that McMinn played he was not interviewed by Victoria Police nor was he called to give evidence at the coronial inquiry. This curious omission is partially explained by the following statement of Mr McMinn - Exhibit 6 para 12:
“12 I had been trying to get a posting back to a Battalion so that I could return to Vietnam and it was not long after this event (his altercation with WO Gamel) that I managed strangely to be posted. I was never called or never knew about the Coronial Inquiry until I was asked to provide this statement.”
Having regard to what will later be set out, the failure to contact him for the purposes of the coronial inquest is perhaps not totally surprising. His account of what transpired and the professionalism of some of the people involved is less than glowing. The evidence presented to the coroner paints a picture or orderly professionalism when dealing with the apprentices injured and fatally injured. The scene painted by Mr McMinn is one of panic, confusion and less than optimal professional conduct by some of the senior participants.
So, the absence of any record of interview of the Applicant is, in the scheme of things, explicable. By all accounts the Applicant was a person who was prepared to defy authority and speak his mind. His profile report from the Army Apprentice School of 14 September 1965 described him as “a sullen looking lad with forthright speech…has a fair amount of underlying aggression under fair control” – Exhibit 2 p. 14.
Central to forming a conclusion on whether the Applicant’s version of events can be believed is the evidence of other persons who were at the scene of the accident.
Apart from those witnesses, the Applicant also called his wife to give evidence. She testified that the Applicant told her about the accident and his role in it during their courtship and in the lead up to their marriage. She testified that she recalled him telling her that on the evening of the accident he heard a noise, ran to the scene where he gave CPR to a person and that there was a terrible smell. In addition she testified that he told her about Apprentice Pearce’s head dropping back.
After their marriage and in the period 1970 to 2009 Read only recalled the fatal accident being discussed on one occasion.
The Tribunal formed a very positive view of the evidence provided by Mrs Read. While her evidence is in the nature of hearsay, it confirms that the Applicant gave her an account of the accident in circa 1968 – 1969 which is consistent with the account he provided to the Tribunal. In short, it suggests that his version of events is not a story concocted by him decades after the event.
The evidence of Mr Willey was of limited probative value. He testified that he ”never made it” to the accident scene and did not personally see the Applicant administer any assistance. Whilst Mr Willey testified that it was “common knowledge” that the Applicant provided first aid it was, by its very nature, hearsay. Moreover, the “common knowledge” he referred to was information provided by four other apprentices who lived in the hut, but none of whom were at the scene of the accident.
The oral testimony of Mr Carpenter was somewhat different to his written statement. He testified that he did not actually see the Applicant at the accident scene but recognised his “gruff voice”. Moreover he also testified that he left the scene to go to the RAP, and on his return to the accident scene he did not recall seeing Mr Read.
Mr McMinn’s written statement describes in some detail what occurred immediately following the accident. His account is extremely important as he was, at the time, the Corporal Regimental Drill Instructor, having enlisted in the regular Army in 1963 and having completed two tours of active service in Borneo and Vietnam. In short by August 1968 he was an experienced career soldier.
In his written statement, Mr McMinn points out (at para 3) that he “did not know Mr Reid at Balcombe as there was very little contact between the apprentices and instructors. He would have been one of the many hundreds that were there at the time.”
He testified that he did not recall meeting the Applicant in person. His view that the Applicant was at the scene of the accident was not based on him actually seeing the Applicant but on a presumption. This presumption was predicated on the location of J company in relation to the accident scene. However, as the Applicant testified, he was actually at the Metal Trades Wing, which is at the opposite side of the parade ground to J company premises. Accordingly, Mr McMinn’s evidence did not assist the Tribunal in reaching a conclusion on the role of the Applicant in the immediate aftermath of the accident.
Consequently, Mr McMinn’s evidence does not assist directly in verifying or otherwise the Applicant’s account of his involvement. His evidence, however, is important in developing an objective picture of the overall scene of the accident and the interplay of the various participants.
The final witness was Mr Coventry and his evidence was of considerable assistance.
Mr Coventry testified that he knew Mr Read, and could state positively that he was at the scene of the accident. He testified that the Applicant has a distinctive voice, and he heard his voice before seeing him. Mr Coventry went to state that he saw the Applicant crouched over the upper part of the body of Apprentice Pearce. He wasn’t sure what he was doing, but initially thought he was providing CPR.
Later when medical assistance arrived he was ordered to move some distance away, and the body of Apprentice Pearce was partially obscured by a wall. He did not witness the Applicant lifting the body of Apprentice Pearce into the Ambulance.
Ms Slack submits (Exhibit 18 para 39) that following the oral evidence the Applicant is left with no evidence to corroborate that he lifted Apprentice Pearce into the ambulance and only one witness who saw the Applicant performing CPR, but even then that witnesses account was not consistent with the Applicant’s account. Further, Ms Slack points out inconsistencies in the evidence of the other witnesses.
Ms Slack notes the difference between the contemporaneous witness statements that fail to mention the presence of a nurse or Matron at the accident site and the Applicant’s version of events.
Further, Ms Slack highlights the inconsistencies in the statement of WO Gamel and those given by both Mr Carpenter and Mr McMinn.
It has long been recognised that over an extended period of time there can be a tendency to meld recollection with reconstruction. This was helpfully explained by Owen J in Bell Group Ltd (in liq) & Ors v Westpac Banking Corporation & Ors [2008] WASC 239 at [1052] – [1053].
In reaching a sound conclusion, the Tribunal must assess the Applicant’s version of events within the broader factual matrix presented.
Clearly there are some inconsistencies in the accounts of the accident, but those inconsistencies are what one might expect from the viewpoint of people trying to recount events of almost 50 years ago.
It needs to be remembered that all of the participants who gave evidence to the Tribunal are now men at an advanced age. At the time of the accident most were teenagers, and it is clear from each of the accounts that there was considerable panic and turmoil immediately following the accident. Mr McMinn graphically described the scene as (Exhibit 6 para 4):
“a dark wet stormy evening and there was a lot of crying and screaming”.
Clearly those who witnessed the aftermath of the accident would have been traumatised. The injuries suffered by some of the Apprentices were severe, with at least two suffering significant bodily disfigurement. For youths to be exposed to scenes of death and mayhem, it is entirely conceivable that the panic and high drama of the occasion would have had an impact on their recollection of what occurred.
A reading of the contemporaneous accounts of the accident makes it clear that a number of Apprentices were involved in the post-accident events.
Mr McMinn, who had joined the Army in 1963, and who, by 1968 had completed two tours of active service in Borneo and Vietnam and had been posted to Balcombe as a Corporal Regimental Drill Instructor, provides useful information on the dynamics of the key participants.
Significantly he made this observation of WO Gamel – Exhibit 6 para 5:
“After about five or six minutes had elapsed other events started to happen. Warrant Officer Two (WO2) Bill Gamel who was the next regular soldier to appear got excited and I could tell from his breath that he had been drinking.”
Mr McMinn also disputes WO Gamel’s account of what transpired. He said (para 9):
“I have just recently been advised that WO2 Gamel had ‘ordered me to give mouth-to-mouth resuscitation to Pierce and Russell’. I cannot recall any such order given to me by WO2 Gamel as I was busy organising things and was not aware of any actions if any whereby WO2 Gamel efficiently and effectively contributed to the management of this catastrophe.”
Mr McMinn also supports the Applicant’s account of a matron being at the scene. Again, Mr McMinn account of the matron’s behaviour is of interest – Exhibit 6 para 7:
“The matron when she arrived was not of much assistance and I had to forcibly remind her of the problems we were facing.”
In addition, Mr McMinn also gives an account of the role played by Major Wallace
(para 7):
“Major Wallace appeared also not to fully grasp the gravity of the situation however I believe when I reflect back on that evening he may have been suffering from the effects of PTSD due to his service in Vietnam.”
The Tribunal formed a favourable view of Mr McMinn’s oral testimony, which was consistent with his written statement. Insofar as there is a difference in the accounts of what occurred at the accident scene between WO Gamel and Mr McMinn, the Tribunal prefers the account given by Mr McMinn.
However, even if one takes as totally accurate the account of events given by WO Gamel, his version is not inconsistent with the version of events given by the Applicant; at least insofar as it relates to him being on the scene and assisting in the recovery efforts. WO Gamel stated (Exhibit 1 T 7.5 p. 196):
“I then ordered several apprentices, including Cpl. McMinn to carry out further mouth to mouth resuscitation on Apprentices Pearce and Russell.”
It is entirely open to the Tribunal to draw the conclusion that one of those “several apprentices” was the Applicant.
Having carefully considered all of the material presented to the Tribunal, both written and verbal, and have observed (some) and listened to all of the witnesses, I am satisfied, on the balance of probabilities, that the Applicant:
(a)was at the scene of the accident shortly after it occurred;
(b)did provide assistance in the post-accident recovery phase;
(c)did attempt to provide assistance to Apprentice Pearce; and
(d)did help in the transportation of the body of Apprentice Pearce from the accident scene to the Army Ambulance.
CORRECT DIAGNOSIS
Ms Slack submits (Exhibit 18 para 11) that unlike in other psychological ailment cases, determining a precise diagnosis of the Applicant’s condition is critical because of the historical nature of the claimed causative event and need for the Applicant to be diagnosed with a condition that can have a delayed onset.
The Applicant submits that the correct diagnosis is PTSD and relies on the opinion of Dr Sarah Beaney. Dr Beaney diagnosed the Applicant with PTSD and in so doing identified the relevant criteria in DSM – 5 (Diagnostic and Statistical Manual of Mental Disorders, 5th ed, published by the American Psychiatric Association).
The various editions of this Manual have been cited and relied upon in numerous matters in all Australian jurisdictions. However, before referring to the relevant part of the current edition of the Manual, reference can usefully be made the observations of Ashley J in Wright v Commonwealth of Australia [2005] VSC 200, which was a case involving a naval serviceman who was present when the HMAS Melbourne and HMAS Voyager collided in 1964. Mr Wright claimed his was suffering from PTSD which had not fully manifested itself for many years afterwards. His Honour said [59] – [61]:
“59 Fifth, psychological tests may be performed which are designed specifically to assist a conclusion whether circumstances recounted by a patient satisfy the pertinent criteria. Nonetheless, diagnosis depends at very least very considerably upon the reliability of symptoms recounted by a patient, although the skilled medical professional will be alert to consider whether the patient’s history fits together.
60 Sixth, there is a particular problem when a patient presents long after an event which would prima facie satisfy the requirements of criterion A of DSM-IV, that patient providing a history of symptoms compatible with the presence of PTSD in the intervening period. Memory is fallible. There is a risk of innocent but false attribution of symptoms to that criterion A event. On the other hand, in some cases- there was argument how many – persons who suffer from PTSD do not discern that their symptoms represent illness, or reject the idea that they are psychologically unwell. So it is that a prolonged period may pass whilst symptoms of PTSD remain present but medically unexplored. So also, the evidence suggested, in some cases the presence of symptoms may be recognised, but attributed to a cause other than the critical traumatic event.
61 Seventh, the problems to which I have just referred do not lead to a conclusion, contrary to absolutist arguments….arguments which I reject- that the history provided by a patient or by his or her family should be put aside, for diagnostic purposes, if it is not supported by ‘objective’ facts. That is not to say, of course, that such fact should not be carefully considered when evaluating what is to be made of the history provided by a patient and his or her family; though, again, whether a particular circumstance should or should not be considered an objective fact will not always be a matter which is free of argument.”
The Manual sets out the following diagnostic criteria for posttraumatic stress order in relation to adults (309.81 – pp. 271 -272):
A.Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
1. Directly experiencing the traumatic event(s).
2. Witnessing, in person, the event(s) as it occurred to others.
3. Learning that the traumatic event(s)occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.
4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g. first responders collecting human remains, police officers repeatedly exposed to details of child abuse).
B.Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:
1. Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s).
2. Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s)
3. Dissociative reactions (e.g. flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring.
4. Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
5. Marked physiological reactions to internal or external cues that symbolize or resemble
6. an aspect of the traumatic event(s).
C.Persistent avoidance of stimuli associated with the traumatic event(s) beginning after the traumatic event(s) occurred, as evidenced by one or both of the following:
1. Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
2. Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
D.Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1. Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia and not to other factors such as head injury, alcohol, or drugs)
2. Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g. ‘I am bad’, “No one can be trusted’, ‘The world is completely dangerous’, ‘My whole nervous system is permanently ruined’)
3. Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead to the individual to blame himself/herself or others.
4. Persistent negative emotional state (e.g. fear, horror, anger, guilt, or shame).
5. Markedly diminished interest or participation in significant activities.
6. Feelings of detachment or estrangement from others.
7. Persistent inability to experience positive emotions (e.g. inability to experience happiness, satisfaction, or loving feelings).
E.Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1. Irritable behaviour and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects.
2. Reckless or self-destructive behaviour.
3. Hypervigilance.
4. Exaggerated startle response.
5. Problems with concentration.
6. Sleep disturbance (e.g. difficulty falling or staying asleep or restless sleep).F.Duration of the disturbance (Criteria A, B, C, D, and E) is more than 1 month.
G.The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
H.The disturbance is not attributable to the physiological effects of a substance (e.g. medication, alcohol) or another medical condition.
DSM – 5, and its earlier editions, have been used by the Repatriation Medical Authority as the authoritative basis for Statement of Principles concerning Posttraumatic Stress Disorder, e.g. No 82 of 2014. The Manual is well known internationally and is rightly regarded as the foundation stone for the diagnosis of various mental disorders. Ms Slack is correct in directing the Tribunal to DSM – 5 as a key reference for determining the existence or otherwise of claimed PTSD.
As the Tribunal has found that the Applicant was involved in the aftermath of the fatal accident of 29 August 1968, Criteria A has been satisfied. It is therefore necessary to consider the remaining diagnostic criteria, in conjunction with the medical and non-medical evidence, to determine if a PTSD diagnosis can be satisfied. Before do so, however, the conflicting diagnoses of Dr Beaney and Dr Scheepers will be briefly outlined, as will the report of Dr Michael Likely, consultant psychiatrist, who provided the initial psychiatric diagnosis in a report dated 13 October 2009.
Evidence was also by Mr Neil Graham McLeod, a registered nurse practising at Townsville Private Mental Health Service. Mr McLeod has been assisting the Applicant since early 2015. Although Mr McLeod provided a statement about the health treatment and care he has been providing the Applicant (Exhibit 8), and the Tribunal found him to be a truthful and well-meaning witness, his observations are those of a layman and were not of particular assistance to the Tribunal in determining the nature of the Applicant’s psychiatric condition. Ultimately, the evidence of the three abovementioned psychiatrists has been critical in the determination of this matter.
REPORT OF DR MICHAEL LIKELY
The Applicant was referred to Dr Likely by the Department of Veterans Affairs. Dr Likely examined the Applicant, in the company of his wife, for two hours on 13 October 2009.
Dr Likely reported that the Applicant told him of two events he had witnessed which caused him particular stress.
The first event was the accident of 29 August 1968, and the Applicant informed Dr Likely that the incident was “covered up” by the Army and “thereafter, he was troubled by recurrent intrusive dreams, in particular of the dead soldier’s head rolling back.” – Exhibit 1 T5 p. 158.
The second event is described by Dr Likely as follows ( p. 159):
“…Mr Read was involved in the investigation of an armoured personnel carrier accident at the High Range Training ground in Townsville in 2004, which led to the death of a Corporal Sturges. Mr Read told me that on investigating the accident, he realised the proper procedures had not been followed and again, he believes the army ‘covered up’ the true cause of the accident. He stated that after investigating the accident in particular, he began to re-experience intrusive thoughts, images and dreams pertaining to the incident which occurred in 1968. He also noticed chronic irritability, which had its onset after the incident in 1968, but which has become particularly troublesome over time. This has caused him not only subjective distress but also problems in the workplace….in the domestic situation where his wife, Helen, told me he was ‘overly strict’ to their four children whilst they were growing up, and in his civilian occupation, where he has had to make a conscious effort to avoid being brusque towards customers.”
Dr Likely noted that the Applicant told him that he had been suffering from “chronically poor sleep” since the 1960s and had increasing problems with attention, concentration, short-term memory and difficulty in organising, planning and sequencing tasks.
As for the Applicant’s social life, Dr Likely made these observations (p.159):
“Mr Read told me that he maintains contact with a small, but trusted group of friends from his army days…he has, however become progressively more withdrawn and detached over the last few years..
In the past, Mr Read enjoyed playing rugby, pistol shooting, and pigging, and he still enjoys outdoor activities including fishing, camping, and he told me that he had walked the Kokoda Track some three years ago.”
Dr Likely concluded with this diagnosis (p. 161):
“In summary then, Mr Read scores 33 impairment points according to GARP-V. All of which I would attribute to his adjustment disorder with anxious mood, which in turn I believe has arisen as a direct result of the service-related traumas of 1968 and 2004 outlined above in the body of this report.”
EVIDENCE OF DR BEANEY
Dr Beaney is a psychiatrist having specialist training in the field of psychiatry of old age. She was educated in the United Kingdom and relocated to Townsville in 2012. She was awarded the FRANZCP in 2014 and has worked in a number of professional positions in Queensland since 2012. She gave oral evidence and was an impressive witness.
Dr Beaney examined the Applicant on 20 January 2016 and had further discussions with him and his wife on 26 January 2016. She had no previous dealings with the Applicant.
In her report of 29 January 2016 Dr Beaney outlined the Applicant’s personal and medical history. She reported that the Applicant described his childhood as follows (Exhibit 12 p. 2):
“He describes his parents as hard workers, his father ‘worked and drank, worked and drank’. He lived with his aunty for a year at a time on occasion. They lived in a commission house, and the family did not have money. He used to collect beer bottles from the street for cash. He hated growing up, stating his parents were arguing a lot. He left home at the age of 16 and joined the Army. He feels that his childhood made him tough, helping him to cope with Army life.”
The Applicant told Dr Beaney (p. 2):
“he feels he has been ‘losing the plot’ since the age of 63 years. He described feeling that he had to maintain a ‘tough façade’ for many years, and that the age of 63 years he was simply unable to do so any longer and felt that he ‘fell over’…..”
Dr Beaney outlined how Mrs Read described the manner in which Applicant’s emotional state impacted on their family life:
“Helen states that Mr Read has had episodes of anger throughout their marriage. She feels these are unpredictable, and often out of proportion to the triggering event. She states he does not stand fools….She feels he has always hidden his emotions and kept his worries and concerns to himself. She notices that he is often awake at night, although she sleeps well; if she happens to wake at night he is usually awake. She feels he is not as happy as he used to be, stating that the last few years have been really difficult for him.”
Finally, Dr Beaney outlined the Applicant’s explanation of how his emotional well-being impacted on him and those around him (p. 3):
“Mr Read maintains that the above incident (29 August 1968) has had a significant impact on his life since it occurred, and that the symptoms associated with this have become more prominent and distressing as he has aged. He describes being a stoical person, not one to discuss his feelings and states that for many years he never discussed what had happened, or the symptoms he was experiencing. He states that he has not slept well since the event, often waking at night ‘ringing wet with sweat’. He often wakes early, and for many years would wake at 3am. He was unable to return to sleep, so would get up and do household chores. He has experienced flashbacks of the smell and sight of the traumatic experience for many years, at times feeling overwhelmed by these. He finds himself all of a sudden ‘in a world of nowhere’, the scene in front of him like a negative, and suddenly he is back there again. He describes episodes of low mood and irritability, being ‘moody’ and drinking too much alcohol. Mr Read describes incidences where he has lost his temper due to his chronic underlying irritability, leading to issues with his Army career, and also his later career in the public service. He states he would find himself ‘losing it’ with people, and telling them they were useless. He has felt urges to shake irritating people, but has managed to resist these urges. He is saddened by the belief that this irritability has had a negative impact on his wife and their marital relationship, feeling guilty he has taken out his frustration on her by being verbally aggressive at times, and generally difficult to live with.”
Dr Beaney then considered which of the Applicant’s features were consistent with DSM-5, and opined the following:
A: factor 2;
B: factors 1 -3;
C: factor 1;
D: factors 4 and 5;
E: factors 1, 3 and 6;
F, G and H.Accordingly, Dr Beaney concluded that the Applicant met the criteria for PTSD as per DSM-5. However, she did express one qualification in relation to criterion G (p. 5):
“Criterion ‘G’ is the criterion that could be argued as not being met, as per Dr Scheepers report. However, based on Mr Read’s subjective report, and the information provided by his wife, I would argue that this irritability and verbal outbursts have had a clinically significant impact on his marital relationship, and also on his occupational functioning.”
Dr Beaney opined (p. 5) that delayed onset of PTSD may occur even decades after the original trauma, and that longer delays are no less probable than shorter delays. Consequently she was of the view that it was possible that the Applicant did not fully meet the criteria for PTAD until some years after the traumatic incident. She was not able to give a clear date for the onset of PTSD but thought it likely that the Applicant’s PTSD symptoms deteriorated as he became older.
Although Dr Beaney noted (pp. 5 – 6) that the Applicant had been involved in the aftermath of a fatal accident in 2004, she attributed her diagnosed PTSD wholly to the events of 29 August 1968.
During cross-examination Dr Beaney testified that it was likely that the Applicant did not satisfy all of the criteria in DSM- 5 for PTSD until 2013. She thought that the Applicant “lost the plot” in the period 2012 – 2013.
Dr Beaney was questioned on her reliance on an Israeli study of veteran’s of the 1982 Lebanese war, where a significant number of veterans reported a delay in the onset of PTSD of between 2 and 20 years after the war – Horesh et al, ‘The clinical picture of late-onset PTSD: A 20 year longitudinal study of Israeli war veterans’, Psychiatry Research 208 (2013) pp. 265- 273.
When asked about the relevance of the study to an instance of delayed PTSD of 40 or more years, Dr Beaney stated that a 40 year delay was outside the realm of the study as the Lebanese War, even now, is less than 40 years ago, and the (approximately) 675 veterans questioned were surveyed in 1983, 1984 and 2002.
Dr Beaney also agreed that sometimes as persons get older they not have, to the same degree, the coping mechanisms to deal with physical pain they once did, and this can lead to the onset of psychiatric conditions.
When asked to explain, in the context of avoidance behaviour, how the Applicant could have continued to work in an environment of workplace injuries and, sometimes, deaths, Dr Beaney said that the Applicant showed traits of resilience and was a stoic personality. Nonetheless, Dr Beaney testified that the Applicant had lost his resilience after leaving work and that the workplace incidents he witnessed did not contribute to the emergence of PTSD.
When asked if she was aware that the Applicant had been diagnosed with sleep apnoea, Dr Beaney answered in the negative, and agreed that in such cases sleep disturbance could be related to physical as distinct from psychological causes.
Finally, Dr Beaney said that Mrs Read had told her that she had a good and happy marriage and agreed that the Applicant had been employed for the whole of his working life.
REPORTS OF DR SCHEEPERS
The Applicant was referred by the Australian Government Solicitor to Dr Johan Scheepers, consultant psychiatrist who examined him on 15 December 2015.
Dr Scheepers outlined at length the Applicant’s military, work and psychiatric history. In particular, Dr Scheepers states that the Applicant informed him that there were two traumatic events which significantly impacted on him: the 29 August 1968 accident and the 2004 defence force accident – Exhibit 9 pp. 3- 4. Dr Scheepers also dealt in detail with the Applicant’s clinical records and a diverse range of matters including his current and previous lifestyle, family background and current medications and treatment.
Having outlined all of the above matters, Dr Scheepers made the following diagnosis
(p. 7):
“The diagnosis of posttraumatic stress disorder is specifically not included in Mr Read’s diagnostic formulation. First, none of the criteria had been consistently satisfied between the ages of 19 and 59, when he first presented with complaints of mental illness to his personal physicians. This opinion is based on the fact that there is no clinical evidence of symptoms in his records, only his stated claim to Dr Likely of such experience as poor sleep and irritability. Secondly, the definition of this condition under Criterion G states that ‘the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning’. Mr Read’s record clearly indicates that his social and occupational functioning had not been significantly impaired by any psychiatric condition between the period 1968 and 2009. This opinion is based on the fact that Mr Read had progressed very well in his Military career, informing me that he was the youngest Warrant Officer Class 1 in the Military because of his excellence of performance in his work.
Mr Read had continued to be successful in his chosen careers right up until 2013, when he had to stop work largely on grounds of physical illness. Concerning the matter of ‘clinically significant distress’, it is difficult to be definite about the effects of events as recorded by Mr Read. As noted in his initial psychological assessment, Mr Read had ‘suppressed aggression’. Given the history reported to me by Mr Read of his early childhood, it is quite likely that the risk of aggression would be high given his development role models. It is therefore quite difficult to know whether Mr Read’s assertion that he was too harsh on his family and took it out on his children, and even the event of aggression towards a Major in 1980, has as much to do with Mr Read’s early history as any exposure to traumatic death.
Mr Read’s level of psychological distress was evidently not enough to impact on his capacity to function in the work environment and to perform adequately. His habit of excessive alcohol consumption may have been a response to distress that resulted from the traumatic death of his colleague, but this is difficult to assert with any conviction. There are a number of other potential explanations why Mr Read resorted to excessive alcohol consumption. That Mr Read managed to deal adequately with the stress associated with litigation between 2001 and 2003, leads me to consider that his psychological health must have been substantial. General practitioner records from 2009 indicate complaints of depression and PTSD, the latter without clinical justification.
Again the onset of symptoms at this stage of Mr Read’s life may have as much to do with his extensive physical illness, changes in work environment and changes in the home environment as any long-standing underlying psychological vulnerability. Based on these considerations, it is my opinion that to ascribe the appearance of symptoms of mental ill health late in life to events that happened in 1968 is not a reasonable argument.”
Dr Scheepers provided two further reports: 18 May 2016 (Exhibit 10) and 31 August 2016 (Exhibit 11). Neither of these reports materially deviate from the above diagnosis.
Dr Scheepers gave oral evidence and was cross-examined on 15 June 2017: his testimony was consistent with his written reports.
CONSIDERATION
Introduction
Dr Scheepers, in his report of 31 August 2016, made an observation which is germane to the disposition not only of this matter, but all matters where the nature of a disputed psychiatric condition is at issue – Exhibit 11 p. 2:
“It must be understood that psychiatry is not an exact science, that opinions are just that, opinions. They are based on clinical impressions and the overall presentation of the individual. As such, arguments and disagreement can easily arise and there is not much to be gained from narrowly focusing on specific matters.”
Can there be late onset PTSD 40 years after the Criterion A event?
At the outset it is important to deal with a critical issue. Can there be a delayed onset of PTSD for a period in excess of 40 years?
Dr Scheepers cast doubt on such a diagnosis, and Ms Slack very appropriately questioned Dr Beaney on the relevance of the Israeli study of Lebanese war veterans when the longest period of time measured for delayed onset of PTSD was only 20 years.
There is no logical reason, especially the evolution and refinement of medical knowledge, why a person who was “injured” (using that term in a general way) may not develop all of the symptoms of PTSD until many years thereafter.
A perusal of the law reports will uncover many cases both in Australia and overseas where the courts have dealt with delayed onset PTSD. For present purposes reference can be made to the High Court decision of Stingel v Clark (2006) 226 CLR 442, where the plaintiff had suffered physical assaults in 1971 but the consequent PTSD did not fully manifest itself until 2000, some 29 years later.
There also have been numerous cases at both a State and Federal level involving claims arising from the collision of the HMAS Melbourne with HMAS Voyager, and HMAS Melbourne with USS Frank E Evans. Many of those claims, commenced decades after the fatal accidents, involved late onset PTSD.
However, while there is no magic dividing line that marks the end point for when PTSD has manifested itself and is appropriately diagnosed, the longer the time period for the diagnosis of PTSD, the more difficult it is for the plaintiff/applicant to contend that the PTSD has been contributed to, to a significant degree, by an event decades earlier. This is particularly so if that person has suffered other traumatic events in the interim and has not developed identifiable symptoms of PTSD for many years after the claimed Criterion A (DSM-5) event.
Injury or Disease
Section 124 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) is a transitional and savings provision. Subsection 1A provides that a person is entitled to compensation under the Act in respect of an injury, loss or damage suffered before the commencement day if compensation was, or would have been, payable to the person under the Commonwealth Employees’ Contribution Act 1930 or the Compensation (Commonwealth Government Employees) Act 1971.
The term “injury” is defined by s 5A to mean:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)the aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment) that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
This definition replaced an earlier formulation which was located in s 4(1). For present purposes the differences between the two are not material. The definition contained in s 4(1) and the task required of the Tribunal was explained by French CJ, Kiefel, Nettle and Gordon JJ in Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 as follows (479-482):
“[42] The set of conditions answering the definition of ‘injury’ in the Act relevantly comprises two sub-sets, ‘disease’ and ‘injury’ (other than a disease)’, the latter sometimes referred to, not necessarily helpfully, as injury simpliciter. They comprise separate but related bases of liability. Each has a different meaning in the statutory scheme.
[43] As appears from the definition of ‘disease’, a disease for the purposes of the Act must be an ailment or an aggravation of an ailment. That is not sufficient to establish the existence of a disease. The ailment or aggravation thereof has to have been contributed to in a material degree by the employee’s employment by the Commonwealth.
[44] An ‘injury (other than a disease)’ covers the other sub-set of ‘injury’. Various aspects of this limb of the definition of ‘injury’ should be observed. First, the phrase ‘other than a disease’ means that if an employee establishes that they have a ‘disease’ within para (a) of the definition of ‘injury’, there is no need to consider para (b)…
[49] It is against that background that the Act requires the tribunal of fact to give consideration to the ‘precise evidence, on a fact by fact basis, …accepted at trial’ and then to ask certain questions in order to determine whether an employee is suffering a ‘disease’ or an ‘injury (other than a disease)’.
[50] First, does the evidence amount, relevantly to something that can be described as an ‘ailment’, being a physical or mental ailment, disorder, defector morbid condition. Second if so, was that state contributed to in a material degree by the employee’s employment by the Commonwealth?
[51] If the answer to both questions is ’Yes’, then there is a disease within para (a) of the definition of ‘injury’. Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is ‘No’.
[52] If there is not a ‘disease’ within para (a) of the definition of ‘injury’, the tribunal of fact next inquires whether there is an ‘injury (other than a disease)’ within para (b). The third question is – does the evidence demonstrate the existence of a physical or mental ‘injury’(in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance in the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an ‘injury (other than a disease)’…”
Applying the above methodology to this matter, the first question to be answered is whether the evidence before the Tribunal satisfies it that the Applicant suffers from an ailment, and, if so, was that ailment contributed to, to a significant degree by his defence service. Only if the Tribunal is not satisfied that the Applicant is not suffering from an ailment does the inquiry then move to the issue of whether the Applicant has suffered an ‘injury’.
Ms Slack submitted (para 64) that this matter should be assessed according to the ‘disease’ provisions because although the Applicant may have suffered a ‘disturbance of the normal physiological state’, it was, on the psychiatric evidence the Applicant relies on, a gradual process over some decades. Ms Slack also drew the Tribunal’s attention to various authorities, including Zickar v MGH Plastic Industries (1996) 187 CLR 310, where Brennan CJ, Dawson and Gaudron JJ said “a consequence solely of a progressive autogenous disease is not an ‘injury’”. Although their Honours were considering a different statute, the general principle enunciated is of relevance.
“Disease” is defined by s 5B of the Act. Subsection (1) defines disease as an ailment suffered by an employee, or an aggravation of an ailment, that was contributed “to a significant degree” by the employee’s employment.
The requirement that the ailment was contributed to a significant degree applies to a diseases where an employee first sought treatment or first resulted in incapacity or impairment, whichever is first. This test came into operation on 13 April 2007, and the Applicant first sought medical assistance for PTSD in 2009. Accordingly the test to be applied is “significant degree” and not “material degree”.
Subsection 5B(2) outlines a non-exhaustive list of matters that may be taken into account in determining if an ailment was contributed to, to a significant degree, by an employee’s employment.
Does the Applicant suffer from late onset PTSD?
The first question is whether the Tribunal can be satisfied, on the balance of probabilities, that the Applicant is suffering from delayed onset PTSD brought about by the fatal accident of 29 August 1968.
Having considered all of the evidence, including the divergence of medical opinion, the Tribunal is not reasonably satisfied that the Applicant has delayed onset PTSD.
The evidence before the Tribunal that leads to this conclusion is set out below.
1. Pre-Army Life
The Applicant informed Dr Beaney that he was brought up in Sterling, South Australia in a housing commission home with his mother, father, sister and his cousin. He described his father as working and drinking, working and drinking and that the family had little money. He used to collect beer bottles from the street for cash. Dr Beaney described him saying that he “hated growing up, stating his parents were arguing a lot”. The Applicant told Dr Beaney that “his childhood made him tough” – Exhibit 12 p. 2.
Dr Scheepers reports the Applicant telling him that his father was “loud and aggressive” and that he learnt “to run and hide”. He described his mother as a tough disciplinarian and stated that the reason for joining the Army at 16 “was to get away from home and constant conflict between his parents”. He lived with an aunt when he was in Grade 1 and Grade 3 -Exhibit 9 p. 6.
Tellingly his profile report prepared on 14 September 1965 by Major Saunders contained the following observations of the Applicant at age 16 - Exhibit 2 p. 14:
“Somewhat sullen looking lad with forthright speech, good maturity and social development though has a fair amount of underlying aggression under fair control M says he needs more discipline”.
Dr Scheepers opined (Exhibit 9 p. 7) that the Applicant’s later aggressive behaviour both within the Army and at home: “has as much to do with Mr Read’s early history as any exposure to traumatic death”.
The material before the Tribunal suggests that the Applicant was by the time he joined the Army a somewhat formidable individual who quickly was chosen for leadership roles, and was prepared to assert himself and “buck” authority. His own account of the accident of 29 August 1968 involves him inserting himself into a chaotic situation, giving directions and refusing to accept the prognosis of the matron. His history of breaching rules in relation to alcohol is another example of his general approach.
When interviewed in February 1991 the “psych comment” portion the interviewer described the Applicant as “a bit of a renegade” – Exhibit 2 p. 5.
The profile of the Applicant presented to the Tribunal is that of a driven person who has never tolerated fools gladly and who had suppressed anger when he joined the Army at 16. The diagnosis of Dr Scheepers quoted is consistent with the thrust of the evidence presented.
2. Army Service post 29 August 1968
As previously pointed out, the Applicant did not leave the Army following the accident. On the contrary, he remained in the Army until January 1986 (17 years later) and the Army Reserves until September 2008 (40 years later).
The Applicant’s army career up to a point was an extremely successful one.
After finishing his apprenticeship, he served in the SAS. He received combat training and was going to be sent to Vietnam, until the then Federal Government determined not continue Australia’s military involvement in South Vietnam.
Far from languishing in the Army he received constant promotions: Sergeant on 1 September 1972, Staff Sergeant on 1 December 1975, Warrant Officer 2 on 2 August 1976 and Warrant Officer 1 on 10 September 1979.
However, the Applicant had a history of bad behaviour. He outlined three instances he recalled where he never received any disciplinary action – Exhibit 3 para 18:
“1972: Serving as a corporal with the SASR did have an altercation with a Warrant Officer Class 2. My boss at the time was a Major who told the Warrant Officer to sort it out himself.
1976: Whilst participating in a Queen’s Medal Rifle Shooting elimination shoot at Victoria’s Williams Town Rifle Range I had an altercation with two Warrant Officers conducting the shoot. My rank at the time was Staff Sergeant. I threatened the two Warrant Officers as they were totally incompetent. For my actions I was charged and given a severe reprimand.
December 1980: Had an altercation with a Major. For my actions and instead of being court-martialled, as I was a Warrant Officer Class 1, my career was never to proceed any further than my current rank. I was 30 years of age when promoted to WO1, the youngest in the Army to that point in time. I served for a further 6 years in the regular Army and a further 20 years in the reserve with no further promotion.”
As the Applicant points out, he was one of the youngest persons who rose through the ranks to achieve the rank of WO1. Apart from his short temper it would appear that the Applicant’s service career was not impeded by any mental ailments. In fact, it would appear that had the Applicant not been a person prone to verbal and physical outbursts he would have become an officer and his career would have been a stellar one.
3. Civilian Work History
As previously noted the Applicant joined the Queensland public service after leaving the Army.
Again, the Applicant was employed in potentially stressful roles, and on at least two occasions he suffered traumatic events.
The Applicant outlined in his written statement of 30 October 2015 one incident whereby a complaint was made to the (then) Criminal Justice Commission in circa 1999 about his behaviour as a Workplace Health and Safety Inspector. The Applicant was charged with an offence he recalls which concerned him exceeding his powers and not providing the person in question with natural justice. Eventually the charges were discontinued but the aggrieved individual then commenced civil proceedings against the State of Queensland and the Applicant. The matter eventually settled. The Applicant states (Exhibit 3 para 10):
“As a result of this ongoing harassment I went to Interlock for counselling from about 2001 – 2002 for 2 – 3 visits (I was sent to the Brisbane office because I knew the Interlock lady here in Townsville).”
The second incident was the Applicant’s involvement into the accidental death of Corporal Sturgess in 2004. The deceased was involved in an incident involving a military armoured personnel carrier on Hervey’s Range Road. The Applicant stated that he did not know the deceased and “his death did not affect me”.
Again, as with his Army service, the Applicant chose employment which involved the exercise of power, the investigation of incidents and engagement with persons in very stressful situations. Apart from what appears to be a continuation of headstrong behaviour occasionally, the Applicant held this employment for a considerable time, and would appear to have been promoted. In short, he was able to perform difficult and stressful work to a satisfactory if not higher standard.
During cross-examination, the Applicant testified that during this part of his professional career he had investigated four deaths and attended the scene of the 2004 fatality outlined above while the deceased’s body was still at the scene. He also investigated many serious workplace accidents, including amputations.
When questioned why he went into this field of endeavour, the Applicant’s illuminating reply was that he enjoyed it.
As with his Army service, the Applicant testified that he liked to set himself goals and achieve them. It would appear that from first enlisting in 1966 until retiring from the workforce in circa 2013-2014, the Applicant was a goal and task oriented individual who enjoyed his career and excelled at those tasks he was adept at and liked.
Finally, the Applicant stated that he ceased working because of his “disabilities” (Exhibit 3 para 2). During the course of the hearing the full extent of the many ailments afflicting the Applicant were outlined. They do not require repetition in this decision. Suffice it to say, the Applicant is a sick man with multiple physical ailments, and that the reason he ceased working was the cumulative impact of those physical ailments, as distinct from a psychiatric condition.
4. Sleep Problems
Dr Beaney reported that Mrs Read informed her that the Applicant is often awake at night, and that in a GP report of 29 March 2010 the Applicant is recorded of complaining of poor sleep. She noted that the Applicant presented to Dr Munoz on 16 May 2013 for referral to a psychologist for treatment of PTSD citing, inter alia, insomnia.
As noted, Dr Beaney was unaware when she prepared her report that the Applicant had been treated in 2012 for sleep apnoea.
In his statement, the Applicant said (Exhibit 3 para 16):
“I believe I have never had a good sleep since the electrocution incident; it never seems to satisfy me.”
Records indicate that the Applicant saw Dr Munoz on 21 December 2012 to discuss a sleep apnoea studies report that had been generated about his sleep patterns. The report of that meeting states: “will start CPAP in January”. The surgery consultation notes of 8 February 2013 state - Exhibit 17:
“Mr read is bery (sic) happy with CPAP machine no snoring feels more alert during the day.”
During cross-examination the Applicant testified that his sleep had improved after using the CPAP machine, and he had voluntarily ceased using it because he didn’t like having a apparatus over his mouth during the night.
Certainly it would appear from the evidence presented that much of the Applicant’s sleep problems, with various associated by-products, was due to his sleep apnoea condition, which significantly improved after using the CPAP machine.
5. Family and social Life
Throughout the Applicant’s accounts of his family life after his marriage in circa 1971 is a lamentable recounting of his aggression and domineering behaviour towards his wife and his four children.
The Applicant experienced great stress in his Army career and he was a product of two things: his family upbringing and the fact that since the age of 16 the only life he knew was the Army life.
The Tribunal accepts that the Applicant was a disciplinarian with his children. Perhaps at times abrupt and uncaring: and this trait carried through to others, including his wife and his some of his army colleagues.
So much is undisputed from the evidence. Yet one could fall into error to view the realities and social mores of now and transpose them of those of 30, 40 or 50 years ago. The fact that the Applicant was, at times, a difficult and disciplinarian father would not distinguish him from many Australian fathers of that era.
Yet despite this his wife testified during the hearing that she was not afraid to give advice to her husband during their marriage. Mrs Read, a very good, honest and reliable witness, described her marriage as a good one. In 1991 when the Applicant underwent an Army interview, his family situation was described as (Exhibit 2 p. 5):
“Good dom situation. W is very supportive...Likes Townsville. Enjoys lifestyle.”
In fact, the evidence suggests that despites all the many problems that existed, and there were many, the Applicant and Mrs Read had a stable and positive relationship. In her written statement Mrs Read said - Exhibit 5 para 6:
“And also we had a lot of love in our home.”
The evidence presented also discloses that the Applicant had an active and varied social life. The evidence suggests that he was by no means a recluse or social introvert.
Of particular relevance are the observations of Dr Likely quoted earlier. He noted, in 2009, that the Applicant enjoyed playing rugby, pistol shooting and pigging. At that time he still enjoyed outdoor activities, including fishing, camping and in circa 2006 walked the Kokoda Trail – Exhibit 1 T 5 p. 159.
Dr Scheepers noted in his 29 December 2015 report – Exhibit 9 p. 6:
“Mr Read sees his family often, and has good relationships with his children. He has a circle of friends that he mixes with on occasion.”
Similarly, Dr Likely observed – Exhibit 1 p. 159:
“Mr Read told me that he maintains contact with a small, but trusted group of friends from his army days. These are all from the Royal Australian Electrical and Mechanical Corp and from the Special Air Service Regiment, with whom Mr Read served for some 4 ½ years.”
The Applicant continued to serve as an active member of the Army Reserve until 2008. He maintained active and ongoing links and involvement in the Army from the age of 16 until he was 59. In short, he was actively participating in Army events and activities for 43 years.
In more recent years it would appear that the Applicant has become, to quote Dr Likely: “progressively more withdrawn and detached over the last few years”. This is not an uncommon trait as many people age, particularly, as in the case of the Applicant, his physical ailments have become progressively more debilitating.
The Applicant is now a grandfather, and is a loving father and grandfather to his children.
The evidence does not suggest a dysfunctional family destroyed by psychiatric issues. Rather, it suggests a family who got through all the issues, good and bad, that life brings, and stayed together as a cohesive whole.
Much of that is due to the Applicant and his wife, and having regard to all of the physical health and emotional issues that impacted on them, and particularly the Applicant, it is a great credit to them.
Application of DSM -5
Ms Slack comprehensively addressed the diagnostic criteria outlined in DSM-5 in her written submissions – Exhibit 18 paras 41 – 57.
Her submissions comport with the factual matrix outlined above are soundly based and each is accepted by the Tribunal.
The evidence presented supports the diagnosis of Dr Scheepers. The following observation of Dr Scheepers flows logically from the evidence – Exhibit 11 p.3:
“Mr Read evidently has access to enough resilience to contain the effects of the incident to the extent that he continued to function adequately. He may well have been irritable with his wife or started drinking more alcohol, but such observations would not qualify him for a diagnosis. My opinion remains the same, that neither in 1968 after the events nor in 2009, 40 years after the event, does Mr Read’s behaviour or clinical presentation present a convincing picture of posttraumatic stress disorder. I have assessed many members of the ADF who have significant PTSD and Mr Read’s history does not conform to that experience.”
However, it is important to highlight the most significant feature of this matter which weighs heavily against a finding of delayed PTSD.
Criterion C requires that a person suffering PTSD persistently avoid stimuli associated with the traumatic event. This can entail avoiding distressing memories or thoughts or avoiding external reminders that arouse distressing memories.
The Applicant continued serving in the Australian Army for more than 17 years after the 1968 incident, and then enlisted in the Army Reserves for another extended period. After the 1968 incident he underwent combat training in the SAS and rose through the ranks, reaching the rank of Warrant Officer 1. If not for his assault of a Major in circa 1979, his evidence is that he would have continued to be promoted. All of the evidence suggests he thoroughly enjoyed Army life and was very good at the tasks required of him. Far from avoiding service life after the 1968 accident, the Applicant embraced it with vigour and enthusiasm.
After leaving the Army the Applicant went into the very stressful industrial relations area, focusing on workplace health and safety issues. He was confronted on a regular basis with people being injured, and on a few occasions being, killed. He was an inspector, and would have been engaged in many confronting and confrontational situations.
Throughout this period, he was actively playing contact sports (rugby) and engaging in vigorous and potentially dangerous social activities (hunting wild pigs).
None of this comports with a diagnosis of avoidance behaviour as mandated by
Criterion C.
Moreover, it cannot be said that the Applicant meets Criterion G, namely his condition caused significant distress and impairment in social, occupational or other areas of functioning.
There simply is no convincing evidence that from 1968 until at least 2008 that the Applicant was in any significant way suffering from an impairment of any of those types. On the contrary, the evidence suggests that the Applicant was a social individual who excelled in social and professional activities. He rose through the Army ranks, he excelled in the public service, he was an active Reservist, he enjoyed fishing, camping and pigging.
The Applicant certainly had some troubling personality traits: irritability, violent outbursts and excessive consumption of alcohol. However, there is no clear link between these aspects of his personality and the 1968 accident.
Further, the Tribunal has been presented with voluminous material about the many medical procedures that the Applicant underwent while in the Army. At various times the Applicant was a very sick person, and common sense would suggest that his physical ailments would have had a debilitating impact on him, and could well have triggered anger and frustration.
The other matter that stands out from the material is the absence of any reference to emotional or psychiatric issues during the Applicant’s army life. The Tribunal was provided with copies of the Applicant’s various Medical Board Examinations, commencing with his initial examination on 9 August 1965 (Exhibit 1 T 3.1 p. 141) and his Entry History Questionnaire of January 1966 (p. 142). The other Examinations were conducted on 17 January 1973 (p. 120), 21 November 1974 (p. 110), 22 March 1976 (p. 106), 30 September 1979 (p. 90), 18 August 1982 p. 73), 2 August 1985 (p. 49) and 27 November 1985 (p. 42). In all of those examinations in the boxes relating to “nervous system”, ”emotional stability” and “mental capacity”, each of the examining medical officers ticked the normal box.
This is not of itself critical; such examinations may have been perfunctory. Further there would, perhaps, have been a predisposition on the part of both the patient and the doctor to get the examination over with as quickly as possible and with as little trouble as possible. Further, as the many cases on PTSD highlight, many sufferers do not disclose to those around them their emotional turmoil.
However, in the 115 pages of Army medical records of the Applicant, involving numerous procedures and examinations over a 20-year period, there is no mention of the Applicant suffering from any emotional disturbance. It is highly unlikely, having regard to the Applicant’s ongoing and frequent medical examinations, that at some stage and by some medical officer, there would not have been some record of him displaying some indicia of PTSD.
Further, even if one accepts that the Applicant masked the early stages of his PTSD from the Army doctors because, for example, he did not want to harm his career, one is then left with the fact that from his discharge in 1986 until 2009, he did not seek any assistance for psychiatric problems. There is simply no evidence before the Tribunal that the Applicant disclosed to any medical professional that he was suffering from any of the symptoms of PTSD until he was approximately 60 years of age.
Mrs Read in both her written statement and oral evidence stated that she recalled the Applicant discussing the fatal accident prior to their wedding. However, when asked how many times it was discussed after their marriage she stated that it wasn’t discussed more than once between 1971 and 2009. It has only been in the last 10 years that the Applicant began to mention the 1968 accident.
If the events of August 1968 had such a traumatic and ongoing impact on the Applicant, it seems inconceivable that there was basically no mention of it in the confines and safety of the family home for almost 40 years, especially if the Applicant was beginning to show signs of PTSD and was having bad dreams etc.
Evidence was also given about the Applicant’s disturbed sleep patterns.
In her written statement Mrs Read made the following comments about his night sweats and dreams – Exhibit 7 para 10:
“I was unaware of his night sweats and dreams, although he used to tell me that his side of the sheets were wet with sweat and could I change them. I did notice after he had left the Army (usually through him telling me the next day) that he would tell me that he had a very bad night sleep. I did notice from time to time that he would disturb my sleep from his tossing and turning although I could not be clear about when this might have started.”
When she gave oral evidence Mrs Read testified that only on three or four occasions each year would she need to change the sheets because they were damp. Accordingly the frequency of the night sweats was limited to one night every three months. Even noting that these events were uncommon, it is illuminating that during a period of almost 40 years the Applicant did not discuss with his wife the content of his sleeping disturbances. Or if he did, on apparently no occasion did he mention the August 1968 fatal accident.
One of the earlier Federal Court decisions on PTSD is Dingwall v Commonwealth of Australia [1994] FCA 1099. The case concerned a veteran who witnessed the atomic tests at Maralinga, South Australia in 1957. In his proceedings against the Commonwealth, Mr Dingwall claimed he was suffering from PTSD, but had not reported any symptoms to doctors for many years after leaving the Army and never discussed his recurrent nightmares with his wife. Foster J made these observations which are relevant to the present matter ([133] – [134]):
“133 It must be borne in mind that the symptoms under discussion are not mere errant, unbidden recollections or hazy dreams. They are emotionally charged and highly distressing experiences symptomatic of psychiatric disorder. They would quite clearly be matters of concern to anyone experiencing them and an eminently fit subject to be reported to that person’s treating medical practitioner, whether general practitioner or psychiatrist. It is therefore, in my view, of great significance that, as I have found, no reports were made of these matters to any medical practitioners until Dingwall was involved in the series of medical examinations in late 1992, which were held for the purpose of this case…
134 I have not failed to take into account Mrs Dingwall’s evidence that, after returning from Maralinga, Dingwall’s sleeping patterns appeared to alter, in that he became restless in his sleep and at times complained of nightmares. If these nightmares were of the type relevant to a diagnosis of PTSD relating to Maralinga experiences, then I would have expected him to have said something about the content to Mrs Dingwall….I cannot envisage any impediments to his describing the contents of his dreams to his wife if, in fact, they were a distressing experience and related to the atomic explosions.”
CONCLUSION
I accept that as a clinical reality, late onset PTSD can be a valid diagnosis. In particular, I accept that with the refinement of psychiatric analysis and diagnosis, it is also open to the Tribunal to find that late onset PTSD can occur at any particular time in an individual’s life. There is no arbitrary time limit for the incubation of this ailment.
However, as Dr Scheepers pointed out in the Israeli study relied on by Dr Beaney, the various veterans who presented with late onset PTSD all demonstrated symptoms before the eventual diagnosis. In short, although the full impact of PTSD may develop over a long period, a person suffering from this condition will manifest symptoms from the onset of the original traumatic triggering event.
The Tribunal has determined, based on the material presented, that PTSD is not the correct or preferable diagnosis because not all Criteria B to H of DSM-5 have been met, and, accordingly, a diagnosis of PTSD is not open to the Tribunal.
Having reached this conclusion, the causative threshold cannot be achieved. The subject matter of these proceedings cannot proceed to the next step.
It is very clear from the evidence presented that the Applicant has served this country well. He came from a difficult upbringing and determined to joined the Army at a very early age. He was earmarked for promotion and leadership, and learned a skill.
Then came a tragic and traumatic event. The evidence is that it was a very troubling and chaotic occasion, and I have found that he played a part, and a very positive part, in the aftermath.
The evidence suggests that he had a good and solid marriage and advanced through the ranks during the 1970s. He had from the onset an anger management problem that manifested itself regularly, culminating in an assault on a senior officer in 1979 which thereafter negatively impacted his service career.
In addition, the evidence also points to the Applicant being a physically active man, who, as a result, had a succession of health issues. These health issues continued to mount as he got older. Perhaps this is because the Applicant was pushing himself to the limit of physical endurance due to his active participation in the SAS Regiment.
After leaving the Army the Applicant again inserted himself into tough and difficult assignments. In these years in the sphere of workplace health and safety matters. For those who are cognisant of what this entails, it requires many strengths of personal character and endurance.
The Applicant’s life history speaks for itself. It is one of progression and success. Success professionally and personally.
The Applicant came from a troubled upbringing and made good. His wife’s family relationship broke down and they made good. Their marriage at times was troubled, but they made good. The Applicant’s physical health is a litany of medical interventions. But not only did he recover but he prospered.
The Applicant having lived and worked a very full and difficult life advanced to an age where his resilience and fortitude ebbed, and the physical and mental ailments of old age intervened. In his case, perhaps, to a major degree.
In short the evidence presented refutes the contention that the Applicant experienced in 2009 the final awakening of the PTSD conceived in August 1968. Rather the evidence suggests, on the balance, that through physical and associated ailments combined with old age, he developed a disease that was not significantly contributed to by his service employment.
Finally, the question is what is the preferable diagnosis on the material adduced. The Tribunal, on the balance, agrees that the diagnosis of Dr Scheepers that the Applicant suffers from an adjustment disorder of chronic duration.
DECISION
The reviewable decision is affirmed.
I certify that the preceding 232 (two hundred and thirty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso
..................................[Sgd]......................................
Associate
Dated: 19 July 2017
Dates of hearing: 13 July 2017, and
14 July 2017Counsel for the Applicant: Mr Darin Honchin Solicitors for the Applicant: Mr Michael Purcell
Purcell Taylor LawyersCounsel for the Respondent: Ms Kate Slack Solicitors for the Respondent: Mr Joshua Sproule
Australian Government Solicitor
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