Rees and Military Rehabilitation and Compensation Commission
[2005] AATA 690
•22 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 690
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1545
GENERAL ADMINISTRATIVE DIVISION ) Re NORMAN REES Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member
Dr Thorpe, MemberDate22 July 2005
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution thereof decides that the Applicant is entitled to compensation pursuant to s14 of the Safety, Rehabilitation and Compensation Act 1988.
..............................................
Ms R Hunt
Presiding Member
CATCHWORDS
COMPENSATION – Post Traumatic Stress Disorder –Failure to give notice under s16 of the Commonwealth Employees’ Compensation Act 1930 – Failure to give notice while still in employment – Failure to make claim within six months of incident – Late diagnosis - No prejudice to Commonwealth found - Reasonable cause found - Personal injury by accident – Arising out of or in the course of employment – Decision set aside.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988
Commonwealth Employees’ Compensation Act 1930
CASES
Brennan v Comcare (1994) 50 FCR 555.
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Australian National Airlines v Cassidy (1964) 110 CLR 172
Accident Compensation Commission v McIntosh [1991] 2 VR 253
Kavanagh v The Commonwealth (1950) 103 CLR 547Commonwealth v Bourne (1960) 104 CLR 32
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534Kavanagh v The Commonwealth (1950) 103 CLR 547
Comcare v Mooi (1996) 137 ALR 690Greer and Comcare [2003] AATA 492
Duncan v Comcare [2004] AATA 666
Darling Island Stevedoring and Lighterages Co Ltd v Hussey (1959) 102 CLR 482
Frazer and Military Rehabilitation and Compensation Commission [2004] AATA 1403
The Commonwealth v Hornsby (1960) 103 CLR 588
Re Ganchov and Comcare (1990) 19 ALD 541
Charles R Davidson and Co v M’Robb [1918] AC 314
Humphrey Earl Ltd v Speechley (1951) 84 CLR 133
Hairis and Comcare (1991) 23 ALD 379
Commonwealth of Australia v Stankowski (2005) NSWCA 106
Commonwealth v Ockenden (1958) 99 CLR 217
Re Willis and Australian Telecommunications Commission (1989) 10 AAR 382Re Australian Telecommunications Commission and Formoso (1985) 8 ALD 191
Banks v Comcare [1996] FCA 382
BOOKS
Lex McAulay “In the Oceans Dark Embrace”
DSM-1V Guide
REASONS FOR DECISION
22 July 2005 Ms Robin Hunt, Senior Member
Dr Thorpe, MemberSUMMARY
1. The Applicant, Norman Rees, claimed compensation for Post Traumatic Stress Disorder (PTSD) which he alleged arose out of an incident on 19 February 1971 at Manly dam. At the time of the incident, Mr Rees was participating in a training exercise with other recruits, prior to being deployed to Vietnam. The exercise involved a river crossing and Mr Rees’ friend, Alan Dempster, drowned. Mr Rees was diagnosed with PTSD in December 2000 and made a claim for compensation on 18 September 2001. His claim was denied on 11 March 2002. He requested a reconsideration of the decision on 14 May 2002 and the decision was affirmed on 9 September 2002. The Tribunal has decided that Mr Rees is not precluded from making his claim although he did not do so within the required period. The Tribunal found that there is no prejudice to the Respondent and that Mr Rees had reasonable cause for the delay in making his claim as he was only recently diagnosed. The Tribunal further found that Mr Rees suffers from PTSD and that this condition is a personal injury by accident which arose out of or in the course of his employment. The reasons for the Tribunal’s decision are set out below.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988
2. Section 124 of the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act) provides for the application of the Act to pre-existing injuries as follows:
“(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
…
(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or
…”
Commonwealth Employees’ Compensation Act 1930
3. Section 4 of the Commonwealth Employees’ Compensation Act 1930 (the 1930 Act), was amended by the Commonwealth Employees’ Compensation Act 1948 (the 1948 Act), to include the definitions of injury and disease.
Injury was defined to mean
"any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury”.
“Disease” was defined as
"including any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease."
In addition, section 4(2) was added and read as follows
“In the application of the provisions of this Act to and in relation to an employee to whom section 10 of this Act applies, any reference in those provisions to personal injury by accident arising out of or in the course of an employee’s employment by the Commonwealth shall be read as including a reference to a disease due to the nature of the employment in which the first-mentioned employee was engaged by the Commonwealth.”
4. Section 9(1) of the 1930 Act was amended in 1948. Prior to the amendment, the personal injury by accident had to arise out of and in the course of employment. The amended section reads as follows:
"9(1) If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act”
5. Section 10(1) of the 1930 Act provides compensation where an employee is suffering from a disease which is due to the nature of the employment.
6. Section 16 of the 1930 Act provides that:
“16. (1) The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made -
(a) within six months from the occurrence of the accident; or
…
Provided always that -
(i) the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and
(ii) the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.
…”
Originally, section 16 only dealt with injury but in 1959, a further amendment included disease and added subsection (4) as follows:
“ (4.) In the application of this section, in accordance with section ten, and sub-section (2) of section four, of this Act, in relation to a claim in respect of an employee who is suffering from a disease or whose death has been caused by a disease -
(a) notice of the accident shall be deemed to have been served in accordance with the provisions of sub-section (1) of this section if notice of the contracting of the disease was served on the Commissioner –
…
(ii) in any other case - as soon as practicable after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, as soon as practicable after his death;
(b) a claim for compensation shall be deemed to have been made within the period required by sub-section (1) of this section if the claim was made -
…
(ii) in any other case - within six months after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, within six months after his death; "
ISSUES
7. The issues which are the subject of the Tribunal’s consideration are:
- Whether Mr Rees’ claim can be admitted under s16 of the Commonwealth Employees’ Compensation Act 1930 (the 1930 Act); and
- Whether Mr Rees’ suffers from PTSD and if so, whether PTSD can be classed as a “personal injury by accident arising out of or in the course of employment” in accordance with s9 of the 1930 Act.
EVIDENCE
Norman Rees – the Applicant
8. Mr Rees gave the Tribunal a history of a difficult childhood in that he grew up without a father and that his mother worked in a bar. When he was 9 or 10, he was put in a boy’s home for 12 months because his mother could not cope financially. Despite this, at school he was quite a good scholar and in the top 20 percent of his class and he was also a good sportsman and enjoyed football, athletics, swimming, and cricket.
9. He completed a 12 month apprenticeship as a coach and motor body builder before he enlisted in the navy in October 1966. He was posted to Rushcutter in October 1977 and undertook a Clearance Diver Acceptance Course. He subsequently did the Clearance Diving course and was qualified on 24 January 1969. Earlier, in mid 1968, whilst in the HMAS Vampire he was involved in the recovery of bodies following a helicopter crash. Although not qualified as a clearance diver at that stage, he was given dispensation to actually carry out diving work involving full body and wreckage recoveries. He found it was a bit daunting and it was something new but carried on because that was what they were trained to do. Later, in June 1969 whilst serving in the HMAS Parramatta, which was an escort ship for the HMAS Melbourne, he was involved in searching for bodies consequent to the HMAS Melbourne colliding with the USS Frank E Evans. Their search was only on the perimeter and did not involve any actual recovery of bodies or wreckage. In evidence, Mr Rees told the Tribunal that it did not affect him seriously.
10. In 1970, he was drafted back to HMAS Penguin for the purpose of pre-deployment for South Vietnam, having been selected for a group known as CDT3.
Whilst he was officially posted at Penguin, he lived in a house at Chippendale with some other divers and in particular Alan Dempster. He had known Alan since recruit school and they had become good friends. Alan was his best friend at that time. On the morning of Friday 19 February 1971, Mr Rees and Alan drove together to meet with the other members of CDT3 for a fitness exercise at French's Forest. There were eight members present and they were to complete an exercise in jungle marching, preparatory to being sent to Canungra, which was the last phase of the pre-deployment to Vietnam.
11. They were all dressed in jungle greens and new boots referred to as GPs. They did not have a full kit and the officer in charge had got some old back packs out of Navy surplus for the exercise. Mr Rees said they weren't the good army packs and they had no release mechanism and no quick release. Mr Rees in evidence said that the officer in charge, Norm Burke, instructed them to put rocks in the back packs. They then proceeded through the bush, not at a walk but at double mark time. They stopped for lunch and during the break made plans for a water crossing at the Manly dam. The packs fit poorly and as a result, Mr Rees had a discussion with Alan, who asked him to tighten his pack up as tight as he could get it, to the point where he would be unable to get that pack off. Alan did the same for him.
12. They were instructed not to go into water more than waist deep, but as Mr Rees recalled:
“one minute we were in waist-deep water and the next minute we were in – I estimate 10 foot of water, probably with, you know, 50/60 pounds of rocks on our back.”
Mr Rees was unable to remove his pack and he did not have a knife to cut it away. He crawled to the shore where a head count revealed Alan was missing. They all stripped, formed a circle around where Alan was thought to have disappeared and proceeded to duck dive to try and find him. Someone yelled “someone go and get - stop a vehicle”. Mr Rees swam ashore and ran to a pump station and called an ambulance. By the time he returned to the scene, Alan had been dragged ashore. His airway was clogged with mud and rubbish making resuscitation impossible. The ambulance arrived and when it was apparent the oxygen bottle was empty, he “flew off the nut” and grabbed the ambulance officer by the neck out of sheer panic. He had no prior history of violent behaviour. Alan was taken to hospital. Mr Rees said he was shattered and was “sort of in tears”, or in fact, crying openly for the next 24 hours.
13. Alan Dempster did not recover and Mr Rees was given the task of talking to the family and cleaning up Alan's gear. The funeral was on 22 February 1971. A “Board of Inquiry into the death of the late ABCD A.R. Dempster R94792” was held on Tuesday 23 February 1971. This report was not available at the commencement of the Tribunal hearing but was later procured on summons by the Tribunal. At 9am on February 23 1971, the Board assembled at HMAS Watson. Evidence was taken and the scene of the accident was visited. On Thursday 25 February 1971, the Board reassembled at HMAS Watson to prepare the report. After hearing all of the evidence, a finding of accidental death by drowning was made and the following recommendations were made:
“a. Teams partaking in such exercises should be accompanied by an Army Instructor;
b. Back packs should be fitted with a quick release mechanism;
c. No blame can be attributed to the OIC of the exercise;
d. No blame can be attributed to other personnel partaking in the exercise. “
It is not the task or purpose of the Tribunal to analyse the recommendations of the inquiry or to comment on the findings. The report provides an account of the events of that day as recalled by those present and corroborates the account as given by Mr Rees. The report and findings are a record of the event without reference to the human emotions of those involved.
14. The team was disbanded in April 1971 when the Government announced there was to be a total withdrawal of troops from Vietnam. At this time, Mr Rees was at HMAS Watson and in evidence told the Tribunal:
“I was hitting the grog pretty hard. I was having trouble sleeping of a night-time and I was trying to hit the booze to compensate the not sleeping. ”
Mr Rees said that he started to notice problems with sleep pretty much straight after the incident and that he had not previously had problems with sleep. When asked what the problems he had with sleeping were he said:
“Oh, I had these recurring dreams of, I guess, drowning in weeds.”
When asked who was drowning in his dream, he said:
“Probably myself. Always seeing this hand coming up out of the weeds and running-just running through the bush and talking and nothing coming out, like as if in a panic. And that was all the time, I just-I couldn’t make- I knew what I was saying but I didn’t, yes, I couldn’t sort of decipher what it was supposed to mean”
15. Mr Rees told the Tribunal that he still has dreams but they are not as intense as they were. He told the Tribunal that he has thoughts on a daily basis and said:
“the thoughts are continual, 24 hours a day and it's more the thoughts that keep me awake. I can't get to sleep. I don't wake up. I just don't sleep”.
If he did sleep he said he is woken up by the dreams. Mr Rees said in his evidence that he believed that if he had not tightened Alan’s pack to the extent he did, Alan would still be alive and this caused him enormous guilt. When asked what the thoughts were about he said:
“I still think about the fact of what I did on that day, whether I could have done it better; whether I could have saved his life; not saved his life; whether it should have happened at all?”
16. Mr Rees’ evidence was that in 1971 he said he was getting very aggravated and agitated very easily. He did not report his problems to anyone as he said it was the big headed attitude of divers to cope with problems. He had a fight with Blue Cox and went on leave and did not give himself up for 2 weeks.
17. Whilst at HMAS Watson, he was not diving very much as most of the work with the EOD team was land based and most of the diving was done by the teams that were in training. He felt that he was no longer competent in the water and said:
“I guess I had this sort of fear of drowning - something that I'd never had before, being a good swimmer.”
18. Following the fight with Cox, he was severely reprimanded and subsequently sent back to sea in the HMAS Brisbane. His job in the HMAS Brisbane was as a clearance diver. He had difficulty with the job and approached Petty Officer McKay and told him he thought his nerve had gone for diving and it was best if he could get off the ship. A transfer was organised. Mr Rees felt he had “lost the plot” and that the alcohol was getting the best of him. He returned to HMAS Penguin and was drafted to another team, Clearing Diving Team Two, which was training in Jervis Bay.
19. Norm Burke was the team officer, the same man that was in charge of the party at Manly dam on the fatal day. Mr Rees refused to dive and was sent back to Penguin and confined to the barracks where he remained until his discharge (seemingly at his own request) in mid 1972. At the time of discharge, he made no claim for compensation and in relation to a medical discharge, he was advised it would be a backward step as he had his whole life before him. He did not believe he had a psychiatric illness at that time and although he knew there was something wrong with him, he did not make any claim for compensation as he had been trained not to show weakness and thought he could fix everything himself.
20. Mr Rees since had a number of jobs and attempted suicide in 1976 because he felt he was a failure. He got a job with Gray Diving Services involving waterfront work which involved diving from time to time. He was not happy with diving but he wanted to try and chase the fear away. Diving was also the best way for him to earn money. In 1976-1978 he bought a truck and worked as a courier for United Rubber Company in Annandale. In 1978 he married and moved to Tweed Heads to work in a metal foundry. He worked at the Chinderah hotel for 18 months before he left after an argument. He worked at the Liverpool hotel but was sacked when he was caught drinking on the job. He worked at the Warren View hotel for 12 to 18 months when his wife left him. He attempted suicide again and spent two weeks in the psychiatric ward at Royal Prince Alfred Hospital.
21. He worked mainly on construction work from 1982-1991 which involved diving now and again. The diving stressed him out but it was all he knew and the money was good. The dreams continued and he and his first wife separated in 1989 and divorced in 1990. He moved to Eden where he worked as a diving supervisor but this involved minimal diving. He worked at Belmont Beach Sewerage works as a rigger/dogman and as a deckhand on a charter craft when he was again sacked after an argument. He worked in Singapore and Indonesia on marine construction in 1995 and 1996. In 1997, he worked as a chainsaw repair man, a deckhand on a fishing boat in 1998 and 1999, a general hand cleaner and in 2000 he worked with Guideline South Coast Construction. He remarried in May 2001.
22. In 2000, he had severe depression and his partner gave him an ultimatum to get something done. He was referred to the Vietnam Veterans’ Counselling service and then to South Coast Psychological Services to see Nanette Anderson, a Psychologist. He was seen by a general practitioner and commenced on an anti- depressant Zoloft, which was of some benefit. On 13 November 2000, he attended the funeral of a naval friend which brought back vivid memories if Alan's death. He got horribly drunk. The next day he went to work and the next thing he remembered was being in Kenmore Psychiatric Unit where he was sent for assessment. Apparently he had demolished his mother-in-law’s house, threatened to burn the house down, threatened police and landed up in Goulburn Gaol where he served three months. This type of episode is referred to in medical terms as a dissociative disorder. In gaol he was seen by Dr Koller.
23. Mr Rees told the Tribunal that his last diving job was in Eden and that he no longer goes swimming.
Medical evidence
24. Reports were provided by Dr Hughson, Dr Wong and Ms Anderson. Dr Dinnen, Dr White, Dr Wallis, Dr Koller and Professor Tenant gave evidence at the Tribunal hearing.
Nanette Anderson - Psychologist
25. Mr Rees's first real contact with professional advice was with a psychologist, Nanette Anderson, on 26 September 2000. He was referred by the Vietnam Veterans’ Counselling service. His partner had told him he needed to get help because of his anxiety attacks, explosive outbursts of anger and social withdrawal which had escalated.
26. Ms Anderson provided a very detailed report (T7), dated 15 August 2001, including a reference to PTSD and to the dissociative disorder he suffered after his friend’s funeral. Mr Rees appeared unaware of the nature of his psychiatric medical condition prior to 2000. Ms Anderson reported that the major impact on Mr Rees's life was clearly the tragic death of his friend Alan:
”Norm had managed to transcend his childhood of physical abuse, neglect and emotional deprivation to become an intensely driven high achiever. By the age of fourteen he had achieved his Bronze Medal in swimming and by 19, the youngest in the team and one of only six out of twenty starters, he had achieved one of the most coveted awards as a Navy Recovery Diver – the Golden Helmet. When the final opportunity to use his hard won skills and to vindicate his friend's death – armed combat in Vietnam – failed to eventuate, Norm at 19 years of age, suddenly lost direction. His sense of identity evaporated and in his own words ' he felt like a stranger in uniform'. Without benefit of any counselling, or a supportive family member to advise him, his life thereafter followed the pattern typical of veterans suffering Post Traumatic Stress Disorder.”
27. Ms Anderson's report provided information concerning Mr Rees’ childhood history of physical and emotional deprivation and abuse which she reported that extensive research has shown to be associated with later vulnerability to PTSD and Dissociative Disorders. She also reported that it was widely accepted that PTSD is frequently co-morbid with other psychiatric conditions including clinical depression and generalised anxiety. We are conscious of the fact that it is not necessarily the province of a clinical psychologist to make the psychiatric diagnosis but to be more concerned with the counselling and management of the condition. However, Mr Rees had been attending Miss Anderson regularly as part of the Vietnam Veterans’ Counselling at Bega.
Dr Hughson
28. Dr Hughson saw Mr Rees in relation to legal proceedings. His working diagnosis was dissociative disorder, substance abuse and dependence – alcohol, personality trait disturbance – cluster B type. Dr Hughson made no reference to PTSD other than not discounting the distress caused by his friend's death, particularly because he perceived it as in part due to the lack of care with which the exercise was set up. Dr Hughson was also of the opinion that his childhood experiences were at least as important in understanding his behaviour, both in general and in relationship to the matters for which he was charged.
Dr White
29. Dr White's diagnosis was that Mr Rees had chronic PTSD, related directly to his experience with his friend’s death in training in 1971 and based on the current symptoms when he saw him in 2004. He considered Mr Rees to have an associated major depressive disorder and alcohol abuse, possibly dependence. He said his diagnosis clearly met the DSM-1V criteria for PTSD.
Dr Koller - Psychiatrist
30. Mr Rees was seen by Dr Koller, a visiting psychiatrist to Goulburn gaol on two occasions in December 2000, who reported:
“It does appear that he has chronic post traumatic stress disorder”.
Dr Koller reported that since the incident when his friend drowned, Rees had suffered immense guilt, ruminations and thought intrusions, sleep disorder, nightmares and distress situations that cue or symbolize drowning. He is prone to irritable depressive mood swings. As indicated by Mr Johnson, counsel for the Respondent, Dr Koller's examination was relatively brief and conducted in a gaol.
Dr Dinnen – Psychiatrist
31. Dr Dinnen was of the opinion Mr Rees has PTSD and that the DSM 1V criteria applied. He also believed Mr Rees would not have developed this illness had he not experienced the trauma as described on service. He did not consider his childhood resulted in an enhanced susceptibility to respond pathologically to such a gross and obviously major traumatic event. His opinion was in contrast to Professor Tennant who diagnosed alcohol abuse/dependence with secondary depressive illness.
Professor Tennant
32. Professor Tennant did not consider that Mr Rees' naval experiences led to any obvious, significant psychopathology that Mr Rees experienced in later years, although it was clear these nightmares alone were initially the consequence of his exposure to the drowning of his close friend. He reported this currently constituted minor psychopathology in relation to the previous significant alcohol abuse and major depression. Professor Tennant had little doubt that the traumatic experience of his friend's death lead to some post traumatic symptoms, but not of sufficient intensity to diagnose PTSD. Of interest, Professor Tennant described Mr Rees' fear of diving amongst weeds (which was the context in which his friend had died) and feelings of distress during the day. Professor Tennant noted that Mr Rees said that he did not avoid diving (which he continues to enjoy and does so to this present day) and commented that he would have dearly loved to serve in the war in Iraq as a diver. Professor Tennant concluded that there appears to be no avoidance phenomena in relation to this tragic event.
33. Professor Tennant disagreed with the reports of Dr's Wong, Hughson and White. Quite fairly in our opinion, he said Dr Wong's and Dr Hughson's reports were to do with Mr Rees's arrest. Our reading of Dr Wong's report was really only to do with his fitness for trial. He found Dr White's report most unsatisfactory but as pointed out by Dr White in later correspondence, the letter Professor Tennant was referring was a communication to Mr Ken Wallis, Mr Rees' psychologist (who had taken over as the treating psychologist) and also his GP. It was not designed to be a comprehensive medico-legal report but a truncated communication to indicate the major features of what is a complex case. Dr White's completed medico legal report of six pages dated 30 March 2004 would not have been available to Professor Tennant, when he made his disparaging comments on 19 February 2004. However, in evidence Professor Tennant continued with his criticism of his colleague:
“and I would stack my credibility-and I know Dr White- I would stack my professional credibility against his any day in the eyes of my peers.”
34. The paradox appeared that whilst alcohol abuse or dependence and depression can be co-morbid factors accompanying PTSD, Professor Tennant did not agree that this was so in Mr Rees's case. He said:
“That is why I make a strong point about the sophisticated analysis of the links between the various psychopathologies, the timing of their onset, the potential causes of all of those three conditions and in this particular case the links are not there.”
That is, whilst Mr Rees may have alcohol abuse/dependence and depression these may be separate pathologies and independent of PTSD, if in fact PTSD is present.
35. Professor Tennant's conclusion was that Mr Rees suffered from depression and alcohol abuse. He did not consider Mr Rees suffered from PTSD, in particular as he did not satisfy the necessary criteria of the DSM-1V.
Kevin Wallis - Psychologist
36. Kevin Wallis, psychologist has seen Mr Rees on more than thirty occasions. In his report of 18 October 2004 he said:
“Another significant factor involved in diagnosing PTSD is there is a demonstrable difference between the individual’s pre and post trauma functioning. Notwithstanding Mr Rees’ disturbed developmental history, from joining the Navy to immediately prior to the drowning incident, his history suggests he was able to apply himself to pass difficult tests to be accepted into an elite group (Clearance Diver). After the drowning, Mr Rees’ history exhibits a rapid deterioration into insubordination, a pattern of regular alcohol abuse, disjointed work history and a pattern of aggressive incidents.”
Dr Wallis agreed with Mr Johnson that it is not the role of a psychologist to make a psychiatric diagnosis. He in fact had referred Mr Rees to Dr White for diagnosis and Mr Wallis' understanding was that Dr White diagnosed him with PTSD and clinical depression, and it was on that basis that he managed and treated Mr Rees. Mr Johnson attempted to discredit Mr Wallis by saying that the psychologists had fitted their management and treatment into that of PTSD based on Dr White's opinion. This in fact highlights the principal issue in this case, namely the diagnosis of any psychiatric disease and in particular does Mr Rees suffer from PTSD and can it be related to the events at Manly dam.
ANALYSIS
37. In order for Mr Rees to succeed in his application, he needs to show that he was entitled to make a claim under the Act in force at the time of the injury as provided in section 124 of the 1988 Act. As the accident occurred in February 1971, which was before the commencement of the 1971 Act in September 1971, the 1930 Act applies. Mr Rees is only entitled to the compensation provided by the Act in place at the time, regardless of the compensation that is available under the current Act. Entitlement to compensation under the 1930 Act is a precondition to Mr Rees’ entitlement under the 1988 Act as stated by Burchett, Gummow and Ryan JJ in Brennan v Comcare (1994) 50 FCR 555.
38. In Australian National Airlines v Cassidy (1964) 110 CLR 172, it was enunciated by Taylor, Menzies and Windeyer JJ that there is a two step process in a compensation claim. Firstly, the claim must be admitted under s16 and if successful, the merits of the claim can then be determined.
SECTION 16
39. Section 16 has a prima facie requirement in that notice of the accident needs to be served on the Commissioner as soon as reasonably practicable after it occurs and before the employee has voluntarily left the employment of the Commonwealth. In addition, a claim for compensation must be made within 6 months after the occurrence of the accident. Mr Rees did not give notice of the accident until 2001 and he was not in the employment of the Commonwealth. Similarly, he did not make a claim for compensation 6 months after the occurrence of the accident as his claim was made in 2001. However, there are two provisos and if each is satisfied, Mr Rees’ claim can be admitted under section 16.
40. The first proviso deals with the failure to give notice whilst still in employment or where the notice is defective. Mr Rees did not give notice of the accident until he made his claim in 2001, 30 years after he left the employment of the Commonwealth. In order to be successful he needs to show that his failure to give notice does not cause prejudice to the Commonwealth or that the want, defect or inaccuracy in his notice was occasioned by mistake, absence from Australia or other reasonable cause.
41. The second proviso deals with the requirements of making the claim. As there was a failure by Mr Rees to make a claim for compensation within 6 months of the accident, he needs to show that this failure was occasioned by mistake, absence from Australia or other reasonable cause.
Prejudice
42.Section 53 of the 1988 Act is the equivalent to s16 of the 1930 Act. Section 53 was dealt with in ReTierney and Reserve Bank of Australia (1988) 15 ALD 534 by Deputy President Thompson, who was the Presiding Member. He stated at 535 that:
“Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee’s assertion of an injury alleged to have occurred on some specific occasion in the course of the employee’s work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act.”
43. It was asserted by the Respondent that it was unable to locate medical records of Mr Rees however Mr Rees did not see any doctors after his discharge until 2000, except after his second suicide attempt. The Respondent further submitted that due to no notice being given, the Commonwealth was not able to organise any medical examination of Mr Rees to see what was going on. The Respondent further submitted that they were not able to make enquiries to see what was going on in Mr Rees’ life at that time.
44. Although the event at Manly dam, that is alleged gave rise to the PTSD, occurred over 30 years ago, there is substantial factual evidence to confirm the event and medical evidence to support the diagnosis. The Respondent was not prejudiced in the ability to properly investigate the circumstances of the claim as Mr Rees was able to provide the name of the supervisor at the time of the incident, together with a record of the log book confirming those in attendance who could verify the event. Records of the incident were obtained as well as records of what happened on Mr Rees’ discharge. An article was also produced by Mr Rees by Lex McAulay titled “In the Oceans Dark Embrace” that detailed graphically the event in question.
45. In the case of Duncan v Comcare [2004] AATA 666, a similar period of over 30 years had passed since the incident and although there was some inconvenience to the Commonwealth in finding records as the incident had occurred some time prior, there were documents indicating the occurrence of the incident and that Mr Duncan was there. The Tribunal found that there was not an insurmountable problem for the Commonwealth and therefore there was no prejudice.
46. In the present case, although there has been a delay of 30 years, the Commonwealth cannot assert that it has been denied the opportunity to obtain further contemporaneous evidence since the time of the incident, given the significant evidence in existence together with the names of the witnesses to independently corroborate the nature of the incident giving rise to a diagnosable psychiatric condition. We find that there is no prejudice to the Commonwealth. As the first proviso is satisfied on this basis, we find no need to turn to the question of whether the failure to give notice whilst still in employment was due to mistake, absence or any other reasonable cause.
Mistake, absence from Australia or any other reasonable cause
47. In Mr Rees’ case, his failure to lodge a claim within the time period can not be said to be due to mistake or absence from Australia. In order to satisfy the second proviso, he needs to show that he had reasonable cause.
Reasonable Cause
48. In Re Willis and Australian Telecommunications Commission (1989) 10 AAR 382 at 675, the Tribunal said:
“The test for whether there was reasonable cause in a given situation was one not judged by reference to some hypothetical man in hypothetical circumstances: but rather, one that involved an objective test taking into account the subjective circumstances of the applicant.”
Further, in Banks v Comcare [1996] FCA 382, the Federal Court stated that:
“the expression “reasonable cause” has been held to refer to some act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailing, is consistent with a reasonable standard of conduct, of such a nature that it might be expected to delay the giving of the necessary notice or claim: See Black v City of South Melbourne[1963] VR 34; Quinlan v Portland Harbour Trust[1963] VR 25.”
49. When Mr Rees was discharged he did not make a claim for compensation. In Mr Rees’ evidence he said he was told by the discharging officer that he could have pushed for medical discharge but it would be a step backwards as he was young. His evidence was that he didn’t believe he had a psychiatric illness at the time and that he could sort out how he was feeling by himself. He knew he had a problem but he did not know what was behind it. He did not think that it was worth making a claim about and that as a diver he was “a tough sort of a breed” and it would go against what he represented.
50. In Banks (supra), the Applicant made a conscious decision not to give notice because he perceived this was where his best interests lay and thought he could deal with the problem himself. This was held not to constitute “reasonable cause”.
51. However, in Re Australian Telecommunications Commission and Formoso (1985) 8 ALD 191, “reasonable cause” included where a claimant hoped he would feel better later. Mr Rees gave evidence that he thought the symptoms and signs would go away, he thought he could deal with it and that he would show weakness if he made a claim.
52. Mr Rees’ circumstances are similar to that of the Applicant in the case of Greer and Comcare [2003] AATA 492. In Greer, “reasonable cause” was satisfied as after the Applicant’s discharge, his ability to think rationally and clearly was severely compromised and he had a suicide attempt. After the Applicant’s discharge from the navy he was suffering from low self esteem and nervousness. Mr Rees gave evidence that he had two suicide attempts, one a few years after his discharge. Looking at these circumstances, it could also be said that Mr Rees’ ability to think rationally and clearly was compromised judging by his suicide attempt and also by comparing his pre incident history and post incident history.
53. In Comcare v Mooi (1996) 137 ALR 690, it was enunciated that while it is not necessary to identify the employee’s condition with the label of a recognised medical condition, it is nevertheless essential for the employee to demonstrate that he or she is “in a condition that is outside the boundaries of normal functioning and behaviour”. Although Mr Rees contends that he may have suffered symptoms of a psychological disorder commencing sometime after the event in question, in accordance with the Federal Court decision in Comcare, he cannot have a compensable injury or disease unless and until such a time that he can show that he has suffered something that can be regarded as an injury or something that can be regarded as a disease. Mr Rees was not able to do this until his condition was properly diagnosed and recognised as a specific medical condition. This did not occur until 11 December 2000. Therefore, it can be seen that this late diagnosis delayed Mr Rees lodging a claim within 6 months of the incident and while still in employment and is consistent with a reasonable standard of conduct. In addition, at the time there was a stigma associated with mental diseases and Mr Rees refused to admit he had a problem, he thought he would get better. As well, it would be a “wussy” thing for him to make a claim as he was a diver and was part of a “tough breed”.
54. The case of Duncan (supra) dealt with similar facts to the present case. In this case, Mr Duncan didn’t apply for compensation until 12 months after his diagnosis. It was held that Mr Duncan’s lateness was reasonable in that he didn’t believe he had a psychiatric disease or an appreciation of the possible impact of the incident until many years later. The Tribunal in this case was prepared to accept that there was a reasonable explanation for the delay in notification and claim for a psychiatric condition based on the lack of knowledge of the possible impact of the incident on Mr Duncan in addition to the possible impact of the condition itself.
55. There was approximately a 9 month delay between Mr Rees’ diagnosis by Dr Koller on 11 December 2000 and his application for compensation on 18 September 2001. Given that 30 years had passed since the incident giving rise to PTSD and he had to find material to support his claim, it can be said that he lodged his claim as soon as reasonably practicable. He did not deliberately set out to delay the lodging of his claim for review. He was not diagnosed with PTSD until 2000 and he pursued his claim conscientiously from the time he became aware of the possibility of there being a causal link between the incident which occurred at Manly dam and his medical condition, until the time of his application on 18 September 2001. It follows that there was reasonable cause for Mr Rees’ failure to make a claim in the time period specified and we find that the second proviso of section 16 of the Act is satisfied.
MERITS OF THE CLAIM
56. Mr Rees’ argument is that he suffers from PTSD which is a result of an injury by personal accident arising out of or in the course of employment. The first question that arises is whether Mr Rees is suffering PTSD. If it is found in the affirmative, the next question is whether it was a personal injury by accident arising out of or in the course of employment by virtue of s9 of the 1930 Act.
Does Mr Rees suffer from Post Traumatic Stress Disorder
57. The issues to be addressed revolve around alcohol abuse, depression and PTSD. There is medical agreement that Mr Rees has alcohol abuse/dependence and depression, and agreement by all of the doctors except for Professor Tennant that Mr Rees has PTSD, and that the alcohol abuse/dependence and depression are co-morbid factors as part of the PTSD.
58. We are in agreement that the reports of Dr Wong and Hughson were to do with his arrest. At that time his family had issued an ultimatum that something had be done about his anxiety attacks, explosive outbursts of anger and social withdrawal and he had been referred to Nanette Anderson, psychologist by the Vietnam Veterans Counselling service.
DSM-1V Criteria
59. There is no doubt Mr Rees suffered a very traumatic event at Manly dam in February 1971, sufficient by usual standards to satisfy the definition of a “stressor” for PTSD, if in fact he has PTSD. Basic to this diagnosis, we have to be satisfied that the DSM-1V requirements are satisfied noting, in particular, Professor Tennant's opinion that the DSM-1V criteria were not satisfied as opposed to the opinions of Dr Koller, Dr White and Dr Dinnen. Concerning the DSM-1V criteria, Professor Tennant considered Factors A, C and D not to be satisfied.
Factor A
60. The DSM-1V Guide provides:
“A. The person has been exposed to a traumatic event in which both of the following are present:
(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity to self or others
(2) the person’s response involved intense fear, helplessness or horror.”
61. Dr Wong and Dr Hughson did not report any past psychiatric history nor did they identify symptoms of PTSD. Mr Rees did not volunteer any such symptoms to them. Rather, they were concerned with the events that led to his arrest and as noted by Professor Tennant both doctors provided very plausible assessments in relation to early childhood factors which had contributed to anger.
62. Professor Tennant reported that for Mr Rees the very significant adverse experience of course was the drowning of his friend Alan, with whom he had a close relationship and indeed for whom he felt responsible. His memories and resentment about the drowning and the officer he considered responsible have remained with him since. Professor Tennant may not accept A to be satisfied but we agree with Dr Dinnen and Dr White that the traumatic event at Manly dam with the accidental loss of life satisfies Factor A. Dr Dinnen believed Mr Rees would not have developed this illness had he not experienced this trauma during service. In response to a question whether Mr Rees' childhood created a precondition or an “enhanced susceptibility” that he would suffer such a psychological condition, Dr Dinnen responded in his report on 9 June 2004:
“Not necessarily. I do not believe he had an enhanced susceptibility to respond pathologically to such a gross and obviously major traumatic experience.”
63. We also note that Mr Rees had prior exposure to traumatic episodes in his naval career. In mid 1968, whilst in the HMAS Vampire he dived and recovered bodies after a helicopter crash, and in June 1969 in the HMAS Parramatta he searched for bodies after a collision. This did not affect him and if he was a vulnerable person, we would expect that he would have been affected. We are satisfied that although Mr Rees may have had a vulnerable personality as a result of his childhood, he overcame this. He applied himself to pass difficult tests so he could be accepted into the elite group of clearance divers and was a successful navy officer and specialist diver until the drowning which triggered his PTSD condition. We are satisfied that this is the stressor which included him feeling responsible for or that he contributed to the death of his colleague, which brought about the PTSD.
Factor B
64. The DSM- 1V guide provides:
“B. The traumatic event is persistently re-experienced in one (or more) of the following ways:
(1) recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions
(2) recurrent distressing dreams of the event
(3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated)
(4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
(5) psychological reactivity or exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
All of the doctors, including Professor Tennant agree that Factor B is satisfied.
Factor C
65. The DSM-1V guide provides:
“C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(1) efforts to avoid thoughts, feelings, or conversations associated with the trauma
(2) efforts to avoid activities, places, or people that arouse recollections of the trauma
(3) inability to recall an important aspect of the trauma
(4) markedly diminished interest or participation in significant activities
(5) feeling of detachment or estrangement from others
(6) restricted range of affect (eg unable to have loving feelings)
(7) sense of a foreshortened future (eg does not expect to have a career, marriage, children or a normal life span. “
66. Much attention was given to Factor C in the diagnostic criteria for 309.81 Post Traumatic Stress Disorder to do with “avoidance”. The debate centred on the fact that Mr Rees returned to diving, and hence did not avoid the situation of the stressor. Our understanding was that the avoidance was the fear of being caught up in weeds. We are mindful of his recurring dream of a hand appearing in the weeds. A trained diver in a controlled situation is very different to an uncontrolled situation of being caught up in weeds. He was a trained diver and this was a way of making a livelihood and professional diving was quite different to walking/wading/swimming through unknown waters. In paragraph 17, Professor Tennant referred to fear of diving amongst weeds. Mr Rees was once a keen swimmer now avoids swimming and has a fear of swimming amongst weeds. Under cross examination, Mr Rees denied that he had told Professor Tennant that he enjoyed diving. We believe he has undertaken diving cautiously in order to earn a living and that he has a fear of the water, in particular where there are weeds and he avoids a once pleasurable past time namely swimming. We consider that persistent avoidance in Factor C, as outlined in the report of Dr White and also by the evidence before the Tribunal, is satisfied.
Factor D
67. The DSM-1V guide provides:
“D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:
“(1) difficulty falling or staying asleep
(2) irritability or outbursts of anger
(3) difficulty concentrating
(4) hypervigilance
(5) exaggerated startle response.”
68. There is no debate that Mr Rees satisfies subsection (1). Concerning subsection (2) irritability or outbursts of anger, Professor Tennant said this could occur in the context of significant alcohol abuse. During the hearing, Mr Perry who was counsel for Mr Rees, stated to Professor Tennant that there were regular and florid outbursts of anger and irritability from when Mr Rees left the Navy in June 1972 through to June 1975 and continued to 2000. Mr Perry asked Professor Tennant whether he believed this to be alcohol related, due to PTSD or due to childhood abuse. Professor Tennant commented that Mr Rees was drinking heavily during this period. Dr Dinnen and Dr White considered subsection (2) to be as a result of the PTSD. Under cross-examination, it was apparent Professor Tennant had not elicited the full details. Mr Perry put to him:
“If Mr Rees had described to other psychiatrists that he was startled easily by loud noises or anyone approaching unexpectedly- he described a feeling on guard all the time and that his wife had told him he was always defensive. He described always sitting with his against the wall. He described having difficulty trusting people in authority. Would that surprise you?”
----” No, it wouldn't surprise me. I mean, it would be some evidence towards that, yes”.
We consider Factor D is satisfied.
Factors E and F
69. The DSM-1V guide provides:
“E. Duration of the disturbance (symptoms in Criteria B, C and D) is more that 1 month.
F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. “
We consider Factors E and F are satisfied.
Diagnosis
70. Dr White and Dr Dinnen were satisfied the DSM-1V requirements for PTSD were satisfied as was Dr Koller. We accept Mr Johnson's submission that Dr Koller saw Mr Rees whilst in custody and for a limited period, but nevertheless he made the diagnosis. Dr White goes through the DSM-1V requirements line and verse (in page four of his report of 30 May 2004). Dr Dinnen said the diagnosis was PTSD and in his opinion the DSM-1V criteria applied. He believed Mr Rees’ abuse of alcohol and the depressive episodes to be part of the PTSD and as they were not separate conditions, they should not be given a separate diagnosis. It was his view that Mr Rees’ PTSD is related to his service in the Navy and that he would not have developed this illness had he not experienced the trauma as described on service. Dr Dinnen did not accept Professor Tennant's criticism of Dr White's report, particularly as he believed Dr White made the correct diagnosis. He reported:
“For reasons which I find it difficult to understand the diagnosis appears to have escaped Professor Tennant”.
71. Professor Tennant opined that there was little doubt the traumatic experience of Alan Dempster’s death led to some post trauma symptoms, but not of sufficient intensity to diagnose PTSD. Professor Tennant considered Mr Rees had a genetic predisposition to alcohol related disorders on the basis of a strong family history. He did not believe Mr Rees drank to relieve anxiety and that the predominant basis for his alcohol consumption was for social reasons. He attributed his depression in 1988 due mainly to difficulties within his marriage and other relationships. He considered alcohol a significant contributor both directly and indirectly to the depression. He did not consider the depressive disorders had any link to his naval experiences.
72. Under cross-examination, Professor Tennant agreed that depression and alcohol abuse/dependence can be co-morbid factors with PTSD. Professor Tennant said that he did not find any causal links between PTSD and alcohol abuse/dependence in Mr Rees case. However, the Tribunal did not feel that Professor Tennant provided a sophisticated analysis that was sufficient to distinguish the alcohol abuse and dependence as being separate from PTSD.
73. Professor McFarlane in Commonwealth of Australia v Stankowski (2005) NSWCA 106 made the point:
“by reference to DSM 1V in its totality, that specific diagnostic criteria included in it are meant to serve as guidelines to be informed by clinical judgement and not meant to be used in a cook book fashion. For example, the exercise of clinical judgement may justify giving a certain diagnosis to an individual even though the clinical presentation falls short of meeting for diagnosis as long as the symptoms that are present are persistent and severe”
Earlier, he said:
” One of the things the DSM 1V discusses, in the initial sections, is the importance of clinical judgement, and also the issue that people can satisfy the diagnosis even though they might not actually satisfy all the diagnostic criteria”.
74. We need not rely on Professor McFarlane's comments as we are satisfied Mr Rees satisfies the DSM-1V requirements alone for PTSD. The clinical diagnosis was not made until 2000, but this is not unusual to have such a long lag period before the diagnosis is eventually made. Mr Rees did not apply at an earlier date for several reasons. He did not think there was anything wrong with him, he thought he had to be a man and to complain was the act of a coward and it was not considered to be in his best interests to have it recorded on his medical at the time of discharge.
75. We are satisfied that Mr Rees was symptomatic from the time of the drowning of Alan Dempster at Manly dam and that these symptoms continue until this day. PTSD was not known in 1971 and in fact not included in the DSM-1V until the mid 1980's. It is only Professor Tennant who does not relate his condition to the trauma of that day and in fact cannot find that the experiences in the Navy lead to any obvious significant psychopathology that Mr Rees experienced in later years, namely alcohol abuse and the major depression.
Personal injury by accident
76. Mr Perry submitted that the incident on 19 February 1971 caused the subsequent disability and was a one off event that produced an injury simplicita. In addition, in Commonwealth v Bourne (1960) 104 CLR 32, Menzies J at 44 recognised that there could be cases where a person suffering from a disease could without the aid of s10 directly come within s9 where:
“a disease is not shown to be a characteristic of the employment in which the employee was engaged, but its contraction or aggravation occurs in such circumstances that there is injury by accident arising out of or in the course of the employee’s employment.”
77. In Commonwealth v Ockenden (1958) 99 CLR 217, it was held that a worker does not suffer an injury where he suffers at his place of employment a sudden and distinct physiological change as the product of an inevitable development of the progressive disease that he had been suffering, where such change can not be attributable to or associated with some incident related to his employment. This involved a case of a defective aortic valve.
78. In Kavanagh v The Commonwealth (1950) 103 CLR 547, it was held that in the case of a cerebral aneurism, the actual mechanics of the rupture constituted an injury by accident purely by virtue of the fact that it occurred in the course of employment. This was so even though one would expect that the aneurism would arise as a result of the disease process.
79. In the case of Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310, the sudden rupture of blood vessels in a cerebral aneurism was held to be an injury and not a disease. The rupture was found to be “distinct from the defect, disorder or morbid condition, which enables it to occur” as cited by Murphy J in Accident Compensation Commission v McIntosh [1991] 2 VR 253.
80. Mr Perry submitted that the cases of Zickar, Okenden and Kavanagh go further than the present case as they are cases when an event which might be seen to be a disease that occurred in the course of employment, had nothing to do with the employment, but the worker on the proper construction of the Act was entitled to recover. The accident in Mr Rees’ case was Alan Dempster’s drowning at Manly dam in February 1971 and the shock associated with this caused his personal injury being PTSD.
81. Mr Johnson submitted that Fullagar J in The Commonwealth v Hornsby (1960) 103 CLR 588 suggested that there are 3 types of cases where disease may qualify as a personal injury by accident, although his Honour qualified his remarks by saying that the last two categories weren’t diseases at all. Firstly, cases where a disease was contracted through exposure to infection or other risk attendant on the conditions of employment. Secondly, where there was an actual internal physical injury and lastly where the death or incapacity resulted from the development/culmination of a pre-existing and progressive morbid physical condition. Mr Johnson submitted that as Mr Rees case does not fall into any of these three categories, it is not a personal injury by accident.
82. However, in a recent Tribunal case of Frazer and Military Rehabilitation and Compensation Commission [2004] AATA 1403, the Applicant claimed compensation for an anxiety disorder due to his service in the Royal Australian Navy. The Applicant’s anxiety disorder developed as a result of “bastardisation”, where the more senior recruits would coerce and physically assault members of the recently arrived intakes. The Applicant claimed that the trauma caused to him during his service produced a mental injury within the meaning of s9. The Honourable Deputy President Wright QC found that the Applicant suffered from a social anxiety disorder which was caused by or resulted from the treatment during his service in the navy. Deputy President Wright was of the opinion that the incidents which occurred in the Applicant’s service caused a “mental injury” within the meaning of s9 of the 1930 Act. He cited Hairis and Comcare (1991) 23 ALD 379 at 385 where it was stated:
“There appears to be no guidance in the case law as to what constitutes mental injury in the 1930 Act. The Macquarie Concise Dictionary defines ‘physical’ as pertaining to the body; bodily’, while ‘mental’ is defined as ‘of or [pertaining to the mind’. Thus a direct injury to the brain would be a physical injury, whilst something occasioning harm to the mind would be a mental injury.”
83. In order to show that the relevant injury was caused by accident, Deputy President Wright cited Fullagar J in Darling Island Stevedoring and Lighterages Co Ltd v Hussey (1959) 102 CLR 482 at 497 where he said:
“Under enactments which simply give compensation for ‘injury by accident’, and made no specific provisions for diseases…..no serious difficulty seems ever to have been felt in regarding the contracting of a disease as an ‘injury by accident’…The claimant had, of course, to fulfil the general condition on which the right to compensation depended. That is to say, he had to show that the contracting of the disease arose….’out of or in the course of employment’”
84. We have carefully considered the authorities above. Mr Rees’ PTSD can be classed as a personal injury by accident according to the reasoning in Frazer (supra) and consistent with Darling Island (supra) as we find that he suffered a mental injury and this occurred by accident, namely the drowning of Alan Dempster. We also note the desirability of having consistency in Tribunal decisions as observed by Deputy President Todd in Re Ganchov and Comcare(1990) 19 ALD 541 at 542.
Arising out of or in the course of employment
85. In the case of Charles R Davidson and Co v M’Robb [1918] AC 314 said:
“’In the course of employment’ must mean….in the course of the work which the man is employed to do, and what is incident to it – in other words, in the course of his service”
The test for “in the course of employment” that is often adopted, was set out in Humphrey Earl Ltd v Speechley (1951) 84 CLR 133, where Dixon J said at 133:
“[T]he question whether it occurs in the course of employment must depend upon the answer to the question whether the workman was doing something he was reasonably required, expected or authorised to do in order to carry out his duties”
86. The personal injury by accident suffered by Mr Rees’ which occurred at Manly dam was in the course of Mr Rees undertaking pre-deployment training for Vietnam. As a result, Mr Rees’ personal injury by accident arose out of or in the course of his employment as this training was something he was reasonably required and expected to do in order to carry out his duties.
87. We find that Mr Rees suffered a personal injury by accident arising out of or in the course of his employment, pursuant to s9 of the 1930 Act. It follows that as the Tribunal has decided to vary the decision under review, it is unnecessary to consider whether the Applicant’s medical condition could also be described as a disease. It is not necessary to do so as he is not dependent on s10 of the Act to establish his right to compensation. See Frazer (supra). Mr Rees, by virtue of having established his entitlement to compensation according to the terms of s9 of the 1930 Act, is thus entitled to compensation under s14 of the 1988 Act as provided by s124 of the 1988 Act.
DECISION
88.The Tribunal sets aside the decision under review and in substitution thereof decides that the Applicant is entitled to compensation pursuant to s14 of the Safety, Rehabilitation and Compensation Act 1988.
I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt
Signed: .....................................................................................
Zoe McDonald
AssociateDates of Hearing: 26 and 27 October 2004, 8 and 9 March 2005 , 29 April 2005 Date of Decision: 22 July 2005
Counsel for the Applicant: Mr M Perry
Solicitor for the Applicant: KCI Lawyers
Counsel for the Respondent: Mr G JohnsonSolicitor for the Respondent: Australian Government Solicitor
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