"SRGGGG" and Comcare (Department of Defence)
[2004] AATA 284
•17 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 284
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2002/275
GENERAL ADMINISTRATIVE DIVISION ) Re “SRGGGG” Applicant
And
COMCARE (DEPARTMENT OF DEFENCE)
Respondent
DECISION
Tribunal Senior Member M D Allen, RFD
Dr J D Campbell, Member
M A Griffin, MemberDate17 March 2004
PlaceSydney
Decision The decision under review is set aside and this matter remitted to the Respondent with the direction that the Applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 for psychiatric illness, more particularly described as severe chronic depression, body dysmorphophobia and obsessive personality disorder.
The Respondent is to pay the Applicant's costs.
(Sgd) M D Allen .............................................
Presiding Member
CATCHWORDS
WORKERS' COMPENSATION - Applicant enlisted as a cadet at the Australian Defence Force Academy against psychological advice - Currently incapacitated by psychiatric illness - Held experiences at the Australian Defence Force Academy materially contributed to current illness - No necessity to find any fault on the part of the employer.
Safety, Rehabilitation and Compensation Act 1988 - s 14
Westgate v Australian Telecommunications Corporation (1987) 17 FCR 235
REASONS FOR DECISION
17 March 2004
Senior Member M D Allen RFD;
Dr J D Campbell, Member;
M A Griffin, Member1. At the outset of its deliberations, the Tribunal had to rule on an application made on behalf of the Applicant pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 that a confidentiality order be made regarding disclosure of his name.
2. Such an order has been made. Whereas the hearing itself was not conducted in closed session as this matter concerns the treatment of the Applicant whilst at the Australian Defence Force Academy (“ADFA”), we think it better, particularly as there is currently a parliamentary inquiry into the military justice system which has resulted in press coverage of military investigations, that the Applicant's identity should be protected.
3. A further point, unfortunately only raised by the Respondent at the time of closing submissions was the capacity of the Applicant's father to give instructions on his behalf.
4. On 14 February 2001, the Applicant signed an application to the Tribunal seeking review of a reviewable decision by the Respondent. Subsequently, questions arose as to the Applicant's ability to give instructions and to give evidence at any hearing. For example, on 14 November 2002, the Applicant's solicitors wrote to the Tribunal's District Registrar stating inter alia:
"We refer to the above matter and note that a telephone conference was held on 3 September 2002 and that during that conference, issues were raised with respect to our client's fitness to give instructions and to manage moneys (sic) that may be awarded to him as a result of the litigation."
and on 26 November 2002, the Respondent's solicitors wrote to the Applicant's solicitors stating inter alia:
"We refer to the above matter and to your letter to the Administrative Appeals Tribunal dated 14 November 2002 and your letter to us dated 21 November 2002. We note that you do not intend obtaining a general guardianship order in respect of SRGGGG. Furthermore we understand that the Applicant's father is assisting him with this litigation and preparation of same and you consider it in the interest of justice for this state of affairs to continue.
Your contention that the Applicant is able to provide instructions with the assistance of his father is contrary to your own medical evidence from Dr Canaris, psychiatrist. In the circumstances, please provide medical evidence supporting your contention that your client is capable of providing instructions with respect to this litigation. Should there be no medical opinion contrary to that of Dr Canaris we anticipate receiving instructions that the Respondent is unable to enter into any negotiations in respect of settlement or the ongoing conduct of this matter.
In the absence of medical opinion supporting your contention that the Applicant is capable of providing instructions with respect to this litigation, we shall seek directions for (sic) the Tribunal as to the ongoing management of this matter."
5. Exhibit A4 is a report obtained from the Applicant's treating psychiatrist Dr Lyndon. That report reads:
"This letter is to certify that SRGGGG suffers from a serious Chronic Psychiatric disorder which severely impairs his ability to participate in day-to-day interpersonal interactions. His verbal communication skills are severely impaired. In my opinion SRGGGG’s psychiatric illness would prevent him from fully understanding court proceedings and would severely impair his ability to give evidence.
It is also my opinion that the stress of appearing in court and having to give evidence is likely to prove to be overwhelming to SRGGGG and have a deleterious effect on his illness. Under such stressful circumstances, SRGGGG may well decompensate into panic, depression and possibly aggressive behaviour.
In my opinion, for the above reasons, SRGGGG is not fit to give evidence through alternative means such as telephone or video."
6. Following a directions hearing, it was recommended to the Applicant's solicitors that an approach be made to the Guardianship Tribunal of New South Wales as neither the Administrative Appeals Tribunal Act1975 or the Regulations made thereunder allow for the appointment of a guardian ad litem (rather quaintly referred to in New South Wales as a "tutor") in Tribunal proceedings.
7. On 16 April 2003, the Guardianship Tribunal made an order pursuant to the Guardianship Act1987 (NSW) to the effect that the Applicant's father be appointed for limited functions including a power to act as the Applicant's "advocate". An order was also made that the Applicant's estate be subject to a management order under the provisions of the Protected Estates Act1983 (NSW).
8. When one reads the reasons for the decision of the Guardianship Tribunal, it is clear that that Tribunal found a Guardianship Order should be made so as to permit the Applicant's father to maintain the claim by the Applicant against the Respondent.
9. We are entirely satisfied that the Applicant's father has the proper legal authority under the law in force in the State of New South Wales to represent the Applicant and maintain the current proceedings. If the Respondent did have doubts about this, those doubts should have been raised much earlier than they were, preferably by way of a directions hearing prior to the first day of the substantive hearing.
10. At the outset, the Tribunal must determine what are the preferable diagnoses of the illnesses suffered by the Applicant. The Applicant has seen numerous psychiatrists both for the purposes of treatment and for medico-legal purposes.
11. The Applicant's current treating psychiatrist is Dr Lyndon. In a report dated 2 January 2003, he diagnosed a moderately severe major depression and considered there were features which indicated and considered Asperger's syndrome.
12. The above diagnosis was disputed by Professor Gordon Parker in a report dated 16 July 2003. He stated inter alia:
" I have no doubt that he has extreme social anxiety ..… and also that he is quite perfectionistic .…. He may additionally have Asperger's ….. but it would not necessarily be mandatory to bring that diagnosis on board. "
13. Exhibit R6 is a bundle of medical reports starting with reports by psychiatrist Dr McMurdo in January 1993 and finishing with the report of Professor Gordon Parker quoted above which was dated 16 July 2003. Those reports give a variety of diagnoses including obsessive compulsive personality, social phobia and preoccupation with body size and shape and avoiding personality disorder, dysmorphobic disorder with body building obsession and associated steroid abuse, schizophrenia, major depression, double depression personality disorder, social phobia, body dysmorphia, obsessive compulsive disorder, a major depressive episode in the year after discharge from ADFA, social phobic disorder, avoidant and perfectionist personality traits and secondary dysmorphic disorder and major depression.
14. Dr P Wurth, in a report dated 3 February 2000 rejected diagnosis of Asperger's disorder.
15. Of the reports in Exhibit R6, the reports of Dr Dent can be disregarded. In a letter dated 17 August 1999, he wrote that he had seen the Applicant at the request of his mother whilst he was treating the mother at the University of Sydney’s Pain Management and Research Centre and that he had not been aware of the Applicant having been a Cadet Midshipman. He does however state:
"I would agree with the view that symptoms have been those that are related to obsessional body building and Abuse of Steroids."
16. The Applicant obtained a comprehensive report from Dr Olav Nielssen. In that report addressed to the Respondent and dated 18 December 2000, Dr Nielssen states inter alia:
"…
PSYCHIATRIC DIAGNOSIS
It was not possible to make a definitive psychiatric diagnosis from the history, examination and documents available.
The most likely diagnosis is major depressive illness, now partially resolved, on a background of avoidant personality traits. This diagnosis is based on the reports of symptoms of major depression, and a response to treatment with antidepressant medication, as well as the history of impaired social performance and the cumulative observations of several psychiatrists, especially Dr McKay."
17. In evidence to the Tribunal, Dr Nielssen (who was called by the Respondent) stated that he would discount the diagnosis of Asperger's syndrome. He also added that although his report had been criticised as containing an incomplete history and that there were deliberate falsehoods provided by the Applicant to him, he did not believe that this affected his opinion as to diagnosis or causation. Dr Nielssen is a very experienced forensic psychiatrist and we accept his evidence on this point.
18. Cross-examined, Dr Nielssen stated that now with the history elicited by Professor Tennant available to him, he would agree that the Applicant met the criteria for the diagnosis of body dysmorphia to be made and that at the time he saw him, the Applicant was partly depressed and suffering from body dysmorphia.
19. Dr Canaris examined the Applicant at the request of solicitors engaged on his behalf by his parents. In his report of 30 September 2002, after perusal of Professor Tennant's report to the Respondent's solicitors, he reaffirmed his diagnosis of severe chronic depression with obsessive-compulsive disorder and body dysmorphophobia.
20. Of particular relevance is the comment in Dr Canaris’ report of 21 August 2002 that:
"The documentation from other psychiatrists who dealt with your client is at once confusing and consistent."
21. Professor Tennant in a report dated 26 July 2002 to the Respondent diagnosed the Applicant as suffering from body dysmophophobia, recurrent major depression and anxious obsessional schizoid personality disorder or traits. These diagnoses were made after examination of documents and without having interviewed the Applicant.
22. In a later report dated 3 June 2003, Professor Tennant, after having interviewed the Applicant, stated that his diagnosis remained essentially unchanged, although he conceded Asperger's disorder as a possibility.
23. The question of Asperger's disorder was put to Professor Tennant in examination-in-chief. He stated he had not considered it himself and he did not know how convinced Dr Lyndon who had suggested it was of this diagnosis. He regarded this diagnosis as "a plausible possibility".
24. Generally speaking, the Tribunal gives great credence to the opinions of treating medical practitioners. In this matter however, we are not convinced that the Applicant does suffer from Asperger's disorder. Professor Gordon Parker somewhat elliptically states that it would "not necessarily be mandatory to bring that diagnosis on board", whereas Dr Peter Wurth rejects the diagnosis. Professor Tennant, after pointing out that the disorder is related to autism, regards the diagnosis as no more than a plausible possibility, whereas Dr Canaris rejects the diagnosis pointing out the Applicant was able to survive boarding school without major problems and that usually the disorder manifests itself earlier in life than with the Applicant. Dr Nielsen in examination-in-chief was even more dismissive of this diagnosis.
25. Dr Prior, Psychiatrist, who saw the Applicant on 4 March 2002, did not include Asperger's disorder as part of his diagnosis.
26. Whereas there have been numerous reports and diagnoses by psychiatrists regarding the Applicant since his discharge from ADFA, we note that depression is a common theme in these reports. We prefer the diagnoses of those psychiatrists who have examined the Applicant most recently. As pointed out by Dr Canaris, he, and most psychiatrists, would have the experience of treating many patients in whom the correct diagnosis is not made until many years after their initial presentation. In our view, this is particularly so in the case of this Applicant whose condition has now become more florid and established.
27. We therefore prefer the opinions of Drs Canaris and Nielssen and Professor Tennant who consider that the Applicant is suffering from severe chronic depression and body dysmorphophobia. We also accept as the correct diagnosis Professor Tennant's diagnosis of obsessive personality disorder.
28. The Applicant's claim is that the psychiatric illnesses currently suffered by him are the result of the treatment afforded to him at ADFA.
29. The Applicant was born on 9 October 1972. His final two years of secondary education was spent as a boarder at a Sydney private school. Given later comments as to the Applicant's personality and also regarding Asperger’s disorder, it is pertinent to refer to the reference provided by the Headmaster of the school at the time of the Applicant completing his Higher School Certificate. This document reads inter alia:
"SRGGGG was a student at … for the final two years of his secondary schooling (1988-1989). He was a boarder in … House. SRGGGG was a quiet, pleasant young man. He proved himself to be reliable, honest, diligent and committed.
SRGGGG developed excellent study habits in his final year revealing independent, sound organization and real determination. He tackled the demanding course of 3 Unit Mathematics, Physics, 3 Unit Modern History, Economics and English. We were delighted to hear that he had achieved his ambition of studying Aeronautical Engineering at the University of N.S.W. this year.
It was a pleasure having SRGGGG at … and I wish him every happiness and success in the years ahead. I recommend him with confidence. "
30. In dealing with the allegations made regarding the treatment meted out to the Applicant at ADFA, the Respondent point to the fact that the Applicant had not himself given evidence in these proceedings. That may be so but his father made contemporaneous notes of telephone conversations with him. As Professor Tennant stated in his final report discussing the question as to whether the Applicant was capable of giving evidence:
"…… I believe his evidence would add nothing to what has been reported by his parents, and by psychiatrists reports."
31. Criticism was also made of the evidence of the Applicant's mother as to what the Applicant had said to her regarding sexual abuse at ADFA on the basis that it was elucidated by direct questioning. We see no reason in proceedings before this Tribunal to disregard such evidence on that basis alone, although it does have the inherent unreliability of hearsay.
32. Initially, the Applicant made an application to enter the RAAF as a pilot but was below the required medical standard. He then applied for ADFA as Aero Engineering Entry. A psychologist’s interview report dated 21 August 1990 stated inter alia:
"May experience some difficulty in adjusting to the high level of demands at ADFA - both academic and personal."
33. Subsequently, the Applicant applied to enter ADFA as a Naval Officer Cadet. In a report by psychologist Megan Ferguson dated 25 September 1990, she notes:
"I doubt that he has the 'presence' to succeed at the Academy"
and her recommendation to the Selection Board was:
"Not rec to board (Personality)."
34. The Selection Board for ADFA interviewed the Applicant on 11 October 1990. The notes of that Selection Board revealed that the Applicant was not recommended for selection to ADFA. More to the point however is the admission by the Assistant Director Naval Office Postings in a Minute dated 28 January 1992:
"… there is some evidence that his treatment from senior cadets was at times excessive.
7. MIDN … SRGGGG’s assessment at the Selection Board is given at Reference K. MIDN SRGGGG’s failure was in many ways to be expected and the offer of IT simply to fill a target of 16 … was unfair on the individual."
35. A handwritten note on the said Minute also refers to "the mismanagement of his selection and entry to ADFA”.
36. As was pointed out by Counsel for the Respondent, the Applicant had given an account of his difficulties at ADFA in the document prepared by him to "show cause" following a warning for discharge from ADFA. This document dated 13 December 1991 (see T87 p83) includes the following:
"At the beginning of the year, I found the Academy environment difficult to cope with. Much of my time was spent on military and cleaning commitments and my academic studies suffered. I was aware of how to study correctly for a University degree but was not allowed sufficient time. My study habits were not able to be organised, and my ability to take notes and extract relevant information in lectures was hampered by physical tiredness. Consequently, I could not sustain the work requirements and assimilation of new information and I failed three mid-year examinations…
I have been unable to carry out one element of the Academy Fitness Test, namely 6 heaves. This is despite weight lifting, considerable exercise and including being in the Squadron Water-Polo Team. Missing meals to meet Military and Cleaning requirements could well have played a part in my not being able to reach the level of strength required. ... "
37. As was pointed out by Counsel, no mention of harassment or "bastardisation" occurs in this document. The short answer to that submission is that we would not expect it to be given the purpose for which the document was created and that the said document was directed to the Commandant of ADFA. Nevertheless in a letter of resignation dated 30 January 1992, the Applicant said:
"I was unable to pursue my studies as diligently as I would have wished, in order to achieve a satisfactory result. If I am to succeed in my degree studies, I need to return to an enviroment (sic) where study is encouraged and not actively hindered. Extra duties and activities were imposed at a level which interfered with the level I have found necessary to achieve satisfactory results."
38. In addition, we do not accept the submissions by Counsel for the Respondent regarding the purposes of psychological testing of potential ADFA recruits. It seems clear given the remarks in the psychologist’s reports and from our own knowledge that psychological assessment includes an assessment of whether a person can cope mentally with the inherent stresses of an institute such as ADFA.
39. Both of the Applicant's parents make reference to two incidents at ADFA to which they were witnesses. During a family weekend at ADFA, they saw the contents of a cadet's room being thrown out of the first floor window of an accommodation block. According to their statements, the Applicant said, "Oh
that’s just someone being 'Bished'. That happens all the time."40. More extraordinary was an event when a female senior cadet entered their son's room and in their presence began to berate him, apparently for not having enough posters on his wall. She also said words to the effect that the Applicant was weak and would never succeed. As stated, this took place in the presence of the Applicant's parents.
41. The Applicant father's contemporaneous notes of telephone conversations with his son reveal that the Applicant had been missing meals because of pointless extra tasks imposed by Senior Cadets. Extra tasks had also resulted in him being unable to study. More bizarrely, he was sleeping on the floor in order to keep his bed in inspection order. Apparently, turn downs were measured to the nearest centimetre and a coin dropped on the bed to see if it would bounce. If this did not happen, extra duties were imposed.
42. The Applicant's mother stated that at a weekend in Canberra in May 1991, the Applicant confided in her that he was being bullied and described incidents known as "turkey slapping" (which involved some form of genital manipulation) and the placing of a vacuum cleaner on the genitals, referred to as "woofering".
43. Later in May 1991, the Applicant had telephoned her at work distressed. He said he had been made to run from Mount Ainsley back to ADFA during the night and had the choice of either "shoes or shorts". We note the description of this so-called "running man" activity discussed at document T69 p198.
44. The incidents referred to above have to an extent been corroborated by other material. For example, in a letter by Vice Admiral Beaumont, Vice Chief of the Defence Force to the then Commandant of ADFA Air Vice Marshal Bomball dated 2 January 1992. In that letter Vice Admiral Beaumont states:
"You would be aware of some of the allegations contained in both letters concerning the treatment of First Year Cadets; they have a familiar ring to them…"
45. In a letter to the Applicant's father, Vice Admiral Beaumont stated:
"The unacceptable treatment of First Year cadets by their seniors is a matter of concern to me, the Academy Commandant and his staff. Allegations along the lines you mention emerged some time ago and prompted a formal program of reform at the Academy which was introduced early in 1991.
I note that most of the incidents you mentioned occurred early in the year and that may have been before the reforms had time to bite. I hope that was the case. Nevertheless, in an institution the size of the Academy there could have been pockets of resistance which held out longer before implementing the new procedures. Again, there may be some which continue to ignore them."
46. Notwithstanding Vice Admiral Beaumont’s assurances, further corroboration of the Applicant's parents’ evidence as to harassment comes from reports in the “Sun Herald” and “Australian” newspapers in 1992: see document T29 pp105-107.
47. That activities such as those complained of continued at ADFA is borne out by the contents of Exhibit A13 "Report of the review into policies and practices to deal with sexual harassment and sexual offences at the Australian Defence Force Academy".
48. We do not consider it necessary to quote extensively from the above document, suffice it to say that it deals with and describes incidents which confirm the Applicant's parents’ evidence eg "bishing" is described, while at paragraph 1.72 (f), it is stated:
"75 per cent of the cadets found that they were expected to meet standards which were, realistically, unattainable and over one-quarter stated that this happened often or all the time."
49. At paragraphs 1.85 and 1.86, it is stated:
"….. Once cadets become known as squeezers, they will become subject to varying types of harassment designed to motivate them into doing better. If, in the view of their fellow cadets, they cannot make the grade, they may become the subject of harassment designed to encourage them to leave the Defence Academy:…..
Given the cadet emphasis on physical prowess, great pressure is brought to bear on cadets to make and maintain the grade physically. Lack of physical prowess is the possible reason for labelling a cadet a squeezer. "
50. We found these paragraphs significant in evaluating the effect of the Applicant's failure to complete his physical training tests.
51. Perhaps the most important finding for the purposes of the Applicant’s case of the report is at paragraph 1.139, namely:
"Some former cadets carry the emotional scars from experiences of harassment and assault that occurred at the Defence Academy. A number have put such experiences behind them; others are still traumatised to the extent that they cannot talk about their time at the Academy. …"
52. Whilst the Applicant was at ADFA, there was also an emphasis on physical training. On 4 December 1991, an Officer Cadet Performance Summary noted that the Applicant "has not passed a PT test since arriving at the Academy." In his "show cause" against discharge, the Applicant pointed out that "missing meals to meet military and cleaning requirements could well have played a part in not being able to reach the level of strength required."
53. Dr Canaris, in his reports and in his evidence to the Tribunal is under no doubts that the Applicant's experiences at ADFA are the cause of his current conditions. In his report of 21 August 2002, he stated:
"However, as I gave the matter further thought, it occurred to me that the matter was considerably more complicated. Firstly, the psychological reports on your client raise the question of whether he should ever have been accepted into the military whether at ADFA or in any other setting. He was clearly a fragile individual who might well have decompensated in the setting of the ordinary demands of military life. This aims to train people to operate under extreme circumstances such as fighting wars. To have accepted him in the first place for whatever reason was to do him a grave disservice placing him at substantial risk of triggering or accelerating profoundly any propensity to psychiatric disorder."
Dr Canaris went on to add:
"…. if we look at symptoms reported today, we see his body dysmorphic disorder and steroid abuse presumably based on his reported belief that he was a weakling. These symptoms resonate strongly with a military culture with its (appropriate) emphasis on physical fitness coupled with his failure to pass physical fitness tests. His failure to pass these tests could not in itself be blamed on the Academy. However, if there is evidence that he was taunted as a weakling, then the seeds of body dysmorphic disorder are effectively sown.
Given his manifest vulnerability, the seeds of disorder fell on fertile soil. However, it is important in assessing causal connections in psychiatry to look not only at mental processes but also at their content.
Similar considerations apply to his obsessional behaviours. From the beginning, your client complains of pointless meetings, excessive cleaning of equipment and the like. Again, the analogy of the seeds of obsessive-compulsive behaviour being sown onto fertile soil holds. This would be especially the case if your client faced penalties or losses of privileges arbitrarily imposed by senior cadets for failing to come up to what were for him impossible standards.
In other words, evidence for a persisting albeit attenuated causal link between ADFA experiences and current symptoms exists if the parents' account of his behaviour, which is supported by Dr McKay's documentation is accepted."
54. In a report dated 20 March 2000 to the Respondent, Dr Tony Lee, Psychiatrist in answer to the question of whether military service had caused, contributed to or aggravated the psychiatric illness diagnosed by him which included depression, body dysmorphophobia and obsessive compulsive disorder said:
"The rigorous disciplinary demands and ethos of military training (here interpreted as bastardisation) may be a 'traumatic' factor which personalities such as SRGGGG may not be able to accommodate and can serve to be a triggering or aggravating mechanism for decompensation to illness states."
55. In answer to the question as to when would service related effects cease, Dr Lee opined:
"It is difficult to address this issue, as conceivably it could last only a short time or continue indefinitely, depending on the person's capacities to 'recover', through medication and psychotherapy to correct existing dysfunctional perceptions, cognition and unconscious conflicts."
56. Dr Nielssen in a report to the Respondent dated 18 December 2000 opined that the contribution military employment made to the Applicant's conditions were best described as "significant" and "influential".
57. In his report of 18 December 2000, Dr Nielssen opined that at the time he saw the Applicant, the influence of the events at ADFA were of relatively little significance, although they would have been highly significant in the first year or so after the Applicant's discharge.
58. Cross-examined at the hearing of this matter and having been given additional information, Dr Nielssen revised his opinions and conceded that the Applicant's current depression was recurrent and could have as a contributing factor the initial stressors at ADFA.
59. More important however is the following passage of questioning of Dr Nielssen by the Tribunal:
"Q: Now, you would agree with me though, that people who go there are psychologically assessed before they go?
A: Yes.
Q: And obviously part of the reason for a psychological assessment is to see whether you are capable of making it or not?
A: Yes.
Q: In this case we have a person who was enlisted against psychological advice?
A: Yes.
Q: So that if one can take the deliberate stresses which are put upon people at ADFA without any resort to particular incidents of what is termed ‘bastardisation’, the particular stresses, etcetera, could it not be that a person such as the current applicant who has later developed psychiatric illness that what he has been through at ADFA realising that he was vulnerable and should not have been there, it can be a contributing factor to his psychiatric illness?
A: Yes, I agree with that.
…"
60. Professor Tennant in his report of 26 July 2002 to the Respondent, whilst diagnosing the Applicant as suffering from recurrent major depression and body dysmorphia implicated the use of steroids as the major contributor to his depressive illness and rejected any contribution from stress whilst at ADFA.
61. Cross-examined, Professor Tennant conceded that the Applicant's military service was a stressor although adding that his opinion was that the greater stressor was being asked to leave ADFA. Further cross-examined, he conceded that if the Applicant had withheld from him the extent of "bastardisation" experienced by him at ADFA, then the level of stress upon the Applicant would have been greater.
62. Given the contemporaneous notes of telephone calls made by the Applicant's father and the evidence of the Applicant's mother, we find that no doubt as a result of his psychiatric illness, the Applicant has not disclosed the full extent of what occurred to him at ADFA to any of the examining psychiatrists. We also find that the incidents described by the Applicant to his parents, particularly to his father of extra duties, petty harassment and unrealistic demands did occur. Exhibit A13 and the letter of Vice Admiral Beaumont tend to corroborate the parents' evidence in this regard.
63. Professor Tennant also stated in cross-examination that significant stressors occurred whilst at ADFA and they contributed to the depression experienced after discharge. He did consider most stressors were short lived but added the caveat "unless there is a degree of underlying pre-existing vulnerability." Professor Tennant had previously stated that the Applicant had a pre-existing genetic vulnerability (to depression).
64. It is not necessary that we be satisfied that the Applicant was subjected to “bastardisation” whilst at ADFA. As was pointed out in Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 at 241, it is not necessary that an Applicant showed that there was a special unusual or wrongful factor of his employment which was the contributing factor. It was sufficient that the employment positively contributed to the development of the Applicant's depression, that is to say that the employment provided external stimulus to aggravate or accelerate his disease.
65. A Military Training Institute such as ADFA must of necessity expose its students to situations where they are required to perform their duties while under extreme pressures. As officers of the Australian Defence Force (“ADF”), they may be required to lead troops in circumstances where they are experiencing stress beyond the experience or contemplation of the civilian. The lives of those whom they command may well depend upon the decisions they make whilst subjected to severe "stress". If students are found to be unable to cope under pressure, it is better that they do not assume leadership positions in the ADF.
66. That having been said, this necessary culling process does not mean that authorities at ADFA are entitled to turn a Nelsonian "blind eye" to behaviour designed to humiliate and demean or what amounts to nothing more than pointless excuses to punish.
67. We find that Dr Nielssen correctly summarised the factors in this matter in his answers to the Tribunal questions quoted above. It has been acknowledged by the Navy that the Applicant was judged psychologically unsuited for entry into ADFA but he was enlisted in order to make up numbers. The inevitable result of what the Applicant experienced at ADFA has been psychiatric illness including depression which still continues.
68. Although disparaged by Professor Tennant as being a non-peer review journal, the article which became Exhibit A8 by Clinical Psychologist, Dr Jefferys, clearly supports the opinion of Dr Canaris and indeed that of Dr Nielssen that the Applicant's condition of body dysmorphia is a direct result of the Applicant's experiences at ADFA. We also accept Dr Canaris’ evidence that the Applicant's obsessive personality disorder is as a result of his time at ADFA.
69. The decision under review is set aside and this matter remitted to the Respondent with the direction that the Applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act1988 for psychiatric illness, more particularly described as severe chronic depression, body dysmorphophobia and obsessive personality disorder. The Respondent is to pay the Applicant's costs.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen RFD;
Dr J D Campbell, Member;
Mr M A Griffin, Member
Signed: (K. Wong) .....................................................................................
AssociateDate/s of Hearing 25 and 26 September 2003
Date of Decision 17 March 2004
Counsel for the Applicant Mr M Robinson
Solicitor for the Applicant Walker, Hedges & Co
Counsel for the Respondent Miss R M Henderson
Solicitor for the Respondent Sparke Helmore Solicitors
0
1
0