Stephen and Comcare (Compensation)

Stephen and Comcare (Compensation) [2018] AATA 344 (28 February 2018)
Division:GENERAL DIVISION
File Number(s): 2016/1139
Re:Frank Stephen
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:28 February 2018
Place:Brisbane

I affirm the decision under review.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – claim for compensation for disease – depressive disorder and generalised anxiety disorder – where the applicant alleged bullying and harassment against his colleague – where the applicant accidentally injured his colleague – where the applicant claimed to fear for his job and to have been ostracised – whether the injuries were caused by his employment – whether disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment – action taken in a reasonable manner – disorders not caused by employment – decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A(1), 5B, 14
CASES
Comcare v Martin [2016] HCA 43
Bropho v HREOC (2004) 135 FCR 105
Comcare v Martinez (No 2) (2013) 212 FCR 272
Dean v Australian Postal Corporation [2010] FCA 680
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Wiegand v Comcare (2002) 72 ALD 795
Re Moore and Comcare [2011] AATA 615
Lynch v Comcare [2010] AATA 38
Re Inglis and Comcare (1997) 49 ALD 183
SECONDARY MATERIALS
Diagnostic and statistical manual of mental disorders (5^th edition) – DSM-5
International Classification of Diseases, Tenth Revision
Customs and Border Protection Service ‘Ethics and Standards of Conduct – March 2009’
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
28 February 2018
INTRODUCTION

Mr Frank Stephen (“the applicant”) seeks review of a decision of Comcare (“the respondent”) dated 3 November 2015.
The respondent in that reviewable decision overturned the initial determination, dated 24 July 2015 (which accepted initial liability for depressive disorder and generalised anxiety disorder) and also decided that the respondent could not accept liability for the applicant’s claimed injuries.
CLAIM OF WORKPLACE INJURY
The applicant was employed by the then Department of Immigration and Border Protection within the Australian Customs and Border Protection Service, and undertook the role of Level 1 Customs Officer for 13 years.
The applicant in his claim form dated 19 May 2015 made a claim under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for a condition which he described as “Mental Health. Emotional Trauma. Anxiety. Paranoid. Stress”. The applicant in the claim form alleged the condition to be caused by discrimination and bullying as well as his career being threatened by senior officers.
The applicant claimed in his claim form that it was on 30 October 2011 when he first noticed his condition. The claim form indicates that it was on 21 May 2015 when he first sought medical treatment for the condition from Dr Anthony Watson, general practitioner.
LEGISLATION
Section 14 of the Act provides that the respondent is liable to pay the applicant compensation in respect of an injury suffered by him if it results in death, incapacity or impairment.
Section 5A(1) of the Act provides that:
5A Definition of injury
(1) In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Under section 5B(1) of the Act “disease” means:
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
Subsection 5B(2) of the Act provides:
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
The term “significant degree” is defined in subsection 5B(3) of the Act to mean a degree that is substantially more than material.
EVIDENCE
The evidence given by the applicant, by associates of the applicant and referred to by the expert witnesses concerned the circumstances surrounding an incident that occurred in Darwin on 30 October 2011. There are various accounts, and accompanying documentary evidence, surrounding the actual incident and the sequence of events. As a summary, where the evidence refers to the “tackling incident”, this means the purported incident where the applicant engaged in a physical incident with a fellow crew member of a customs patrol vessel on the evening of 30 October 2011.
Evidence of Applicant
The statement of the applicant dated 14 October 2016 was tendered in evidence. The applicant in giving evidence remarked that the contents of his statement were true. In his statement the applicant stated that the information in his undated statement[1] is true and correct except for a number of corrections that were made to it in his later statement of 14 October 2016. The applicant stated that in October and November 2011 he had the email address of ‘[email protected]’ which his wife used. The applicant stated he did not personally use that email address.
[1] Exhibit A, T-documents, T3
The statements of the applicant[2] outline the applicant’s view of the incident:
(a)A fellow employee Mr Flockhart had a few drinks on the night in question while the applicant did not;
(b)There was a car ride in which Mr Flockhart called the applicant by a nickname “Big P” and that “P” was for “poofy” and that Mr Flockhart was acting childishly and inappropriately due to his level of intoxication;
(c)After the car ride and when walking back to the vessel, Mr Flockhart and the applicant had a conversation about football codes after which Mr Flockhart ran at the applicant three times. The applicant states[3] this was not in an angry way, however the applicant felt it was unprofessional and he felt frustrated;
(d)The third time Mr Flockhart ran at the applicant the applicant grabbed him around his body and as the applicant lifted him, Mr Flockhart misjudged the landing as he was intoxicated. Mr Flockhart was then on his back and threw a kick at the applicant; and
(e)Following the incident, Mr Flockhart and the applicant had an argument and Mr Flockhart stated the applicant would lose his job, that he would write the applicant up and that “I will fry you”.[4]
[2] Ibid at p. 43-44 and Exhibit B, Statement of the Applicant dated 14 October 2016
[3] Exhibit A, T-documents, T3 at p. 43
[4] Exhibit B, Statement of the Applicant dated 14 October 2016 at [17]
The applicant was subject to extensive cross-examination.
The applicant gave oral evidence surrounding the tackling incident with Mr Flockhart which occurred on 30 October 2011. He confirmed that he was friends with Mr Flockhart and they had previously gone fishing together before the incident. The applicant stated that he and Mr Flockhart were engaging in friendly banter about whether AFL or Rugby was the best football code before the incident. Also before the incident, the applicant stated that Mr Flockhart put his “finger” in the applicant’s ears during a car ride that evening and that he had told Mr Murphy[5] on that night that Mr Flockhart had “…wet his fingers and put it in my ears from behind”.
[5] The name of this person has been changed for confidentiality reasons.
The applicant also stated that on the next day after the incident, he had told Mr Flockhart and “all of them” about Mr Flockhart putting his finger in his ears.
The applicant stated that he did not mention Mr Flockhart putting his fingers in his ears in the May/June 2015 letter because he was “stressed”.
The applicant stated he played Rugby for Casuarina South and had been scouted by the Cronulla Sharks. He stated that he was not a strong man and did not believe he was a good rugby player however he knows of “different techniques” for lifting people, and when Mr Flockhart ran at him “the third time” he “picked him up” and “put him down”. He does not recall Mr Flockhart hitting the wharf fence. He states that when Mr Flockhart was on the ground, Mr Flockhart kicked the applicant in the “private parts” and that hurt him.
The applicant stated that he then told Ms Martin about Mr Flockhart kicking him. The applicant stated that Ms Martin turned around, came back, grabbed the applicant by the hand and said to him: “Forget it, uncle, just come back” and then walked beside him to the vessel.
The applicant further stated in cross examination that before Ms Martin led the applicant away, and while she was standing behind him, Mr Flockhart got up off the ground and “had a growl” at the applicant with his face right up close to the applicant’s face and Mr Flockhart was spitting into the applicant’s face while he “growled” at him. Ms Martin then pulled the applicant away and they walked to the vessel together.
The applicant said that after he arrived on board the vessel, Mr Flockhart came and “repeated” himself saying “I’m going to fry you, you wait till I get a hold of Canberra”, and was screaming at him.
According to the applicant, however, despite the fact Mr Flockhart was screaming loud enough for Ms Martin and Mr Thurtell to hear, Mr Murphy did not see or hear what was happening, and did not come to intervene, because he was “probably in the cabin” when the screaming occurred.
The applicant did not make any notes about what happened that evening because he was “told to keep it on the boat”. The applicant stated he did not tell Mr Murphy on 31 October 2011 that he had apologised to Mr Flockhart, and the reference to him apologising in the Murphy Notes (at page 59) is a reference to him apologising to Mr Murphy for waking him up on the night of the incident.
Medical Witnesses
Dr Anthony Watson
Dr Anthony Watson, general practitioner, was called by the respondent. Dr Watson stated that he had been in general practice since about 2009. Dr Watson stated that the applicant first consulted him on 28 June 2010 and the applicant had continued to see him on a number of occasions between then and 2015, or thereabouts, about a range of physical conditions, including diabetes, gout and foot problems. Dr Watson stated that he had a good therapeutic relationship with the applicant who he stated had come to him with his diabetic issues and his feet issues in a professional manner.
Dr Watson was asked whether the applicant discussed his work in any way. Dr Watson answered: “In terms of his feet and the relationship between his medical conditions and his work, certainly”. Dr Watson was asked about what discussions he had with the applicant during the assessments that occurred before the incident on 30 October 2011. Dr Watson answered that the applicant “has obviously got issues with feet due to a number of reasons. He’s a very big man and he’s got big feet, big wide feet, and not suited really to work boots and he developed bunions on both big toes. He was feeling pain from his feet and he also suffers from gout which exacerbated the situation as well. So we did a lot of work around getting him referred to podiatrists and so on, but then it became an issue that he couldn’t actually wear his shoes at work any longer and then it became a work-related issue”.
Dr Watson stated that the applicant not being able to wear his shoes at work became a work-related issue sometime in 2011 and that in about January 2012 the applicant was referred to a podiatrist to look at getting inserts in his work boots. Dr Watson said that it came down to the fact that the applicant could not wear his shoes and was off work for a very long time during 2012.
Dr Watson was asked if he had asked the applicant about any other issues he might be having at his work. Dr Watson answered: “No, we never discussed any other issues and I guess we used to have a little light-hearted discussion on what he used to do, you know, for these long periods of time and fishing and that sort of thing but never anything regarding his relationship with his workmates or anything, no”.
Dr Watson was asked about the applicant seeing two occupational physicians (Dr Peter Wilkins and Dr David Douglas) in around June 2013. Dr Watson did not recall the applicant having seen Dr Wilkins but did recall the applicant having seen Dr Douglas for an assessment. Dr Watson confirmed that in about October 2013 he wrote his own report in which he certified that the applicant was effectively permanently unfit for sea duties.
Dr Watson confirmed that his report concluded with the following remarks:
“In conclusion, I do not believe that Frank could ever be rehabilitated to return to his former marine duties. Given the restriction imposed by the condition of his feet, the only likely position he could be retrained for would have to allow him to wear loose fitting open footwear.”
Dr Watson was asked whether in writing that report he considered any other medical issues he maybe suffered from at that time including, for example, mental health issues. Dr Watson answered: “Not mental health issues but mainly clinical issues of his diabetes, which was of great concern to him and it was of great concern to me, and the effect that diabetes would have on his general health”. Dr Watson was asked whether he was aware of the applicant having any mental health issues at that time. Dr Watson answered: “Not at that time, no. In fact - if I go on, we did some health checks on him, although we didn’t do anything specific. I didn’t do any specific mental health testing, I asked him about his mental health at the time and he said he was actually happy and it looks like from that, it was actually my wording and that was in March 2013”. Dr Watson confirmed that on 22 March 2013 he made a clinical note that says “Mood assessment: happy”. Dr Watson was asked to explain his statement that he “didn’t do specific testing”. Dr Watson answered:
“If I was concerned about mental health, I would probably go on and do an assessment such as a Kessler, K10 questionnaire or a DASS 21 questionnaire which would give me a more specific assessment of mental health but these are sort of more open-ended questions, you know, how are you feeling?”
Dr Watson confirmed that when he referred to K10 and a DASS test, that he meant the Depression Anxiety Stress Scales test which measures levels of depression, anxiety and stress for symptoms and allows him to form a more considered view about mental health.
Dr Watson was asked about when he was first told about the incident in October 2011. Dr Watson answered that the applicant came in with a report on 21 May 2015. Dr Watson confirmed that this referred to a clinical record made by Dr Watson dated 21 May 2015 that said “Related an incident in 2011 on shore leave in Darwin. He reports there’s never been disclosure on this and he has flashbacks to this and poor sleep”.
Dr Watson was referred to a medical certificate form for compensation dated 21 May 2015 in which in respect of “Current Clinical Symptoms”, Dr Watson had referred to “Poor sleep, paranoid, flash PTSD symptoms”. Dr Watson was asked to explain what he meant by “paranoid”. Dr Watson remarked that there was certainly PTSD and obviously having the flashbacks and poor sleep, he was not sure why he used the word paranoid because he had not used that term in his clinical notes.
Dr Watson was asked if he was sure that the applicant had not referred to the shore leave event of 2011 before 21 May 2015. Dr Watson confirmed that was the first time the applicant had referred to the event.
Dr Watson was referred to his comments that he made about the applicant: “He has an element of PTSD but advised Frank this is part of a more holistic issue around loss of work, painful feet, poor diabetes control et cetera”. Dr Watson remarked: “Well, I was probably looking more at his holistic balance rather than just the incident which you brought up here because he certainly had a lot of other problems on the go at that time and he was not able to go to sea. He was actually not working for Customs any longer and he still had painful feet on and off, his diabetes was not under control, his renal function was going off.”
Dr Watson was asked whether he had formed any view at any time before he was given the compensation form on whether the applicant was exhibiting any sort of symptoms or behaviours that were clinically significant, such as marked distress that was out of proportion of a severity or intensity of any stressors that he knew were going on in his life. Dr Watson replied: “No, I knew that probably he was not happy with not working any longer, you know, in terms of not going out to sea because I presumed that he enjoyed doing those things but he appeared to be reasonably happy otherwise …. I hadn’t formed the opinion that he was actually distressed in any way by anything else”. Dr Watson confirmed that before 2015 he was not given any reason to think that the applicant might have a significant impairment in a social, occupational or other way of functioning that resulted from mental health, as distinct from the applicant’s physical issues.
Dr Watson was advised that the applicant had given sworn evidence that he had informed Dr Watson of the shore leave incident before 2015; the applicant claimed that he did talk about this problem but that he did not think that Dr Watson had recorded it until 2015. Dr Watson was advised that the applicant had stated that he told Dr Watson about the meeting that he had with Mr Murphy that was playing on his mind. Dr Watson again said that he could only recall being given the first report of the incident on 21 May 2015.
Dr Watson was told that the applicant was questioned about him seeing the applicant after he had been seen by Dr Matic on 6 January 2012, when Dr Matic had made a note that the applicant had “Nil mood issues”. Dr Watson was informed of a number of assertions of the applicant who stated that he had told Dr Watson about his concerns about his mental health. Dr Watson reiterated that he did not remember the applicant having mentioned his concerns to him.
Dr Watson was asked whether the applicant had come to him and said that he had this incident on-board where he had been bullied and harassed, or somebody had bumped into him and he had tackled the person, and now he was stressed because he was looking at disciplinary action. Dr Watson had asked about what he would have done if the applicant had told him about that. Dr Watson answered that he probably would have made some note on that but that he did not have any record of it in his notes. Dr Watson was questioned about the assertion of the applicant that when he informed Dr Watson of his mental state that Dr Watson had laughed at him in that context and said, “Why don’t you focus on your diabetes?”: Dr Watson did not accept this assertion.

Dr Watson was asked about the assertion of the applicant that on 21 May 2015 he told Dr Watson about his mental condition on that day because he came to find a cure on that day. Dr Watson responded: “Well, he came to me to get a medical certificate, that’s what he came to me for - for a Comcare medical certificate”.
Dr Watson confirmed that Mrs Amanda Stephen, the wife of the applicant, had attended medical appointments with the applicant and that he would also talk to her on the telephone whilst the applicant was with him. Dr Watson was informed that it was put to the wife of the applicant that the first time that the applicant had raised this issue with him was on 21 May 2015 and she said that he had raised it previously and that she was there. Dr Watson was asked whether he remembered the applicant raising this issue with him before 2015 while Mrs Stephen was there; he stated that he was not aware of this at all.
Dr Watson was informed that the wife of the applicant had been asked about the mood assessment when he recorded his mood as happy and she stated that the applicant would wake up every day in doom and gloom and he would slip into trances and withdrawn episodes which would last a couple of weeks or a week. Dr Watson was asked if the applicant or his wife had informed him of those episodes, Dr Watson answered: “Not that I recall, no”. Dr Watson was asked about whether the applicant did anything, or talked about any other things, that led him to believe he might have been suffering from these sorts of episodes.
Dr Watson stated that he had got the impression the applicant was not happy with the work he was doing; he mentioned that on one occasion the applicant stated that he was asked to go and work for a commercial fisherman but he could not get his master’s certificate. Dr Watson confirmed that would have been after the applicant had taken his redundancy and was volunteering at the school in about 2014.
Dr Watson was informed that the wife of the applicant had in her statement remarked that after the redundancy the applicant “began to become more irritably paranoid and withdrawn… I have often found that Frank has got up in the middle of the night and is sitting on the verandah ruminating on his treatment after the incident. Over time Frank became very anxious and irritable. Even minor things such as the children making noise caused him to be worried. Frank told me that when he went out to places such as shopping centres and social occasions that he was being judged”. Dr Watson was asked whether the applicant or his wife had ever talked to him about the applicant beginning to suffer or developing more significant symptoms of that type after the redundancy. Dr Watson answered: “Not that I recall, no”.
Dr Watson was asked when the applicant came and saw him on 21 May 2015 whether he described symptoms of that nature that he was suffering from at that time. Dr Watson answered: “No, he just said at that stage that he was having flashbacks to the incident and he wasn’t sleeping very well”. Dr Watson was asked whether the applicant talked about feeling like he was being judged on social occasions. Dr Watson answered that his visit was more than a year and a half ago and he did not remember it all now. Dr Watson was asked about whether he was told about the paranoia of the applicant and him sitting there ruminating. Dr Watson reiterated to the applicant that there had never been closure on the issue if he was having flashbacks and poor sleep, and he offered to refer him to a psychologist.
Dr Watson confirmed that on 21 May 2015 he advised the applicant to get a mental health care plan which would allow him to get a referral to the psychologist to get paid under Medicare and that was the first mental health care plan that he advised him to get. Dr Watson was asked why he did not advise the applicant to get a mental health care plan earlier. Dr Watson answered: “Because I hadn’t assessed him to be requiring any psychological counselling or mental health help”. Dr Watson confirmed that the applicant seemed happy when he conducted the mood assessment in March 2013.
Dr Watson was referred to his medical record of 14 August 2015 in which he made the following remarks:
“Lengthy discussion with Frank about issues in general. He is fixated on this current issue of anxiety and stress related to an incident in 2011 in Darwin. Advised that he needs to consider all his issues that are contributing to his current mental state (viz: physical health - diabetes, feet pains- and loss of his job at Customs.
Refuses to acknowledge that the co-existing issues are also contributory.”
Dr Watson was asked to explain what he meant by his comments. Dr Watson remarked that he thought that the 2011 incident was taking primary place in the applicant’s mind at that stage and that the fact that the applicant was no longer working fulltime in Customs, his physical health was a problem and his feet were still painful were all contributing to the applicant’s mental health issue.
Dr Watson remarked that the applicant was a fairly intelligent man and able to understand the health issues that he has and that he should have the ability to know that physical health and mental health are intimately related. Dr Watson was asked about the issues of ethnicity broached in his report; he responded by commenting that the applicant, who is a Torres Strait Islander, would say he did not understand those things. Dr Watson commented upon his note that “Frank does not wish to talk about his physical health today!” Dr Watson stated that this was in relation to when he wanted to talk to the applicant about the applicant’s diabetes and health issues rather than just talking about the 2011 incident.
The applicant did not cross examine Dr Watson.
Dr Curtis Gray
The respondent called Dr Curtis Gray, psychiatrist, who stated that he has prepared two reports dated 17 July 2015 and 3 November 2016 in relation to the applicant. Dr Gray confirmed that he diagnosed a mixed anxiety and depressive disorder having regard to the International Classification of Diseases, Tenth Revision (“ICD-10”) which is similar to a specified anxiety disorder under the Diagnostic and statistical manual of mental disorders (5^th edition) (“DSM-5”).[6] Dr Gray also confirmed that he had proposed an etiology that involves an initial diagnosis of an adjustment disorder that evolved into a mixed anxiety and depressive disorder sometime later.
[6] Diagnostic and statistical manual of mental disorders (5^th edition) at p. 233
Dr Gray was referred to his first report (at p. 8 [3]) where he referred to the difficulty of being sure when the applicant first began to suffer clinically identifiable symptoms of an adjustment disorder, as well as being referred to his second report (at p. 4 [2]) where he made a similar comment but explained in more detail what he meant by the symptoms being unable to be clinically supported. Dr Gray was asked to explain why there is a difficulty in being certain about when the adjustment disorder first arose. Dr Gray remarked that the date when he first saw the applicant was a number of years after the incident on the wharf and he did not have an opportunity to interview the applicant at that time.
Dr Gray made observations about the difficulty in diagnosing an adjustment disorder. He remarked that there is some uncertainty about determining the boundary of a normal reaction to a stressful situation. Dr Gray stated that the diagnosis of adjustment disorder requires a degree of distress with regard to the severity or intensity of the stressor which is clinically significant, or an impairment, and that this is a matter of judgment that has to be made.
Dr Gray confirmed that he was referring to the DSM-5 diagnostic criteria B which refers to:[7]
The symptoms or behaviours to be clinically significant need to be evidenced by one or both of the following:
1. One marked distress that’s out of proportion of the severity or intensity of the stressor taking into the account the external and cultural factors that might influence symptom, severity and presentation.
2. Significant impairment in social, occupation or important areas of functioning.
[7] Diagnostic and statistical manual of mental disorders (5^th edition) at p. 286
Dr Gray confirmed that he saw the applicant in 2015 and in his opinion the applicant was then suffering from a mixed anxiety and depressive disorder. Dr Gray also confirmed that what probably began as an adjustment disorder had evolved into a mixed anxiety and depressive disorder at some time before he saw the applicant.
Dr Gray confirmed that it was difficult to say exactly when the adjustment disorder arose. Dr Gray stated that a major reason was because he did not do a clinical assessment when the alleged events are said to have happened so that he could document any marked distress or significant impairment. Dr Gray also stated that if you see somebody within a three month period adjustments have to be made by the trained clinician.
Dr Gray confirmed that criterion A under DSM-5 criteria includes a temporal requirement which is the development of emotional or behavioural symptoms in response to an identifiable stressor, or stressors, occurring within three months of the onset of a stressor. Dr Gray was also referred to criterion C which requires the distress related disturbance to not meet the criteria for another mental disorder. Dr Gray agreed that criterion C provides that if you met the criteria for the mixed anxiety and depressive disorder, then by definition you could not diagnose an adjustment disorder, although in cases like this where there is stress related symptomology, that criterion is difficult to interpret at times. Dr Gray confirmed that under DSM-5 an adjustment disorder should not be diagnosed where there is a normal period of grief and bereavement unless it is clinically significant.
Dr Gray was referred to criterion E under DSM-5 criteria which states that in the ordinary course once the stressor and its consequences have terminated, the symptoms do not persist for more than an additional six months. Dr Gray stated that with an adjustment disorder, a different diagnosis is made at that six month point, or beyond that six month point, if the stressor or the consequences of the stressor have terminated, but it is not convention to change the diagnosis beyond the six month point if the stressor or its consequences are terminated. Dr Gray confirmed that it is quite common for an adjustment disorder to resolve within six months.
Dr Gray was referred to the examples of stressors in the DSM-5 at page 287 and confirmed that it is possible to suffer an adjustment disorder in connection with a failure to attain occupational goals or a retirement or a redundancy. Dr Gray stated that under the DSM manual the clinician or assessor does not make a judgment about the stressor or the nature of the stressor, but really looks to the presentation of the patient. Dr Gray also confirmed that it is difficult in medico-legal cases for a person who is not the treating clinician to form a view on whether the stressor happened in the way that is described in the material and whether that person did suffer significant symptoms described under diagnostic criterion B within the three months of the stressor.
Dr Gray agreed that an expert has to make clear what assumptions are relied on for the purpose of an opinion. Dr Gray recognised that the medical history obtained from a patient is not necessarily a factual account about what happened. Dr Gray confirmed that there are two types of history that are relevant which are the history involving the stressor and the history involving the reaction and when particular symptoms started to be suffered. Dr Gray agreed that it was not his role to be a finder of fact, which is a matter for the Tribunal.
Dr Gray confirmed that he based his opinion on what he was told by the applicant during the interview, looking at the clinical notes that are provided to him, and the other material that he has read, but acknowledged that he did not hear from the other person involved in the incident and witnesses directly. Dr Gray was referred to his second report of 3 November 2016.[8] Dr Gray confirmed that it is difficult to form a judgment about whether the absence of notations of symptoms, or even notations like an unremarkable mood or a happy mood indicated whether they mean that the person was not suffering from those symptoms at that time or that they were so mild they did not report them or that they reported them and they were not documented. Dr Gray acknowledged the possibility that the symptomatology was so mild at the time that it was not worthy of reporting.
[8] Exhibit K, Supplementary Report of Dr Curtis Cray dated 3 November 2016 at p. 5 [3](a)
Dr Gray was referred to DSM-5, on page 289, under the heading “Normative Stress Reactions” which states:
“When bad things happen most people get upset. This is not an adjustment disorder. The diagnosis should only be made when the magnitude of the distress (e.g. alterations in mood, anxiety, or conduct) exceeds what would normally be expected (which may vary in different cultures) or when the adverse event precipitates functional impairment.”
Dr Gray explained that there is boundary of where the normal reaction to the stress and an adjustment disorder begins. Dr Gray remarked that a clinician or an independent examiner has to try to take into account all factors that would influence how an individual will respond to any given stressor or a series of stressors and make a judgment around what would reasonably be expected in those circumstances which would take into account culture.
Dr Gray was referred to the fact that shortly after he formed his view on diagnosis, the applicant saw Mr Vic Rodney, a psychologist, on 12 May 2016.[9] Dr Gray was referred to the records where there is a reference to the applicant and his wife reporting various symptoms including paranoia and mistrust of white people and that some symptoms had “worsened over the last six months”; six months prior to May 2016 was December 2015. Dr Gray was also referred to the records which disclose that the applicant having experiencing ongoing anxiety and mood issues which worsened “since deciding to take legal action last year”.
[9] Exhibit P, WHS Medical Records at p. 115
Dr Gray was informed that the claim was lodged in May 2015. Dr Gray confirmed that if there was an accurate recounting of the history, then the symptoms would have worsened significantly before the applicant came to see him in July 2015.
Dr Gray confirmed that his clinical impression of the applicant was based on how he presented in July 2015 and that he had regard to other material including witness statements. Dr Gray stated that he did not have any other meetings with the applicant.
Dr Gray was referred to a passage in the statement of the applicant’s wife regarding what happened since the applicant’s redundancy which occurred in late 2013[10]:
“Since his redundancy he has continued to talk to me about the incident and told me he simply cannot get past it.
After redundancy Frank began to become more irritably paranoid and withdrawn.
I have often found that Frank has got up in the middle of the night and is sitting on the verandah ruminating on his treatment after the incident. Over time Frank became very anxious and irritable. Even minor things such as the children making noise caused him to be worried. Frank told me that when he went out to places such as shopping centres and on social occasions that he was being judged.”
[10] Exhibit C, Statement of Amanda Stephen, p. 4 at [25] - [27]
Dr Gray confirmed that the description from Mrs Stephen is consistent with the history that he obtained.
Dr Gray was asked to explain the comments in his second report[11] where he stated: “Over time, he appears to have increasingly ruminated on the incident and I suspect it has taken on greater meaning to him over time”.
[11] Exhibit K, Report of Dr Curtis Gray, p. 3
Dr Gray remarked:
“Well, I do think that the history points to, over time Mr Stephen becoming more and more focused, on what happened… on the wharf. I’d stop short of using the word “fixated” but I think he was… ruminating, which is, sort of, going over and over and over in his mind, these matters. … Yes, there’s no doubt that, in my opinion, that - and that mental state over time can influence or even alter recollections. … Some people have used a term that sort of captures this called, retrospective falsifications to sort of capture the idea that when - and we all do this by the way, that when we look back at events from the past they do, to some extent, get influenced by how we’re feeling in the present and sometimes we will again unconsciously usually, modify our memory of what happened”.
Dr Gray was again referred to the statement of Mrs Stephen who stated that since the applicant’s redundancy he continued to talk about the incident and told me “he simply cannot get past it”. Dr Gray was advised that in Mrs Stephen’s evidence she remarked: “The more we talked about it, the more anxious he got”. Dr Gray was also advised that it was put to Mrs Stephen that events have taken on a greater significance over time to which she said, “No, he was in spin mode. The more we talked about it, the more we were able to process it and realise that he was wronged”. Dr Gray was asked how that evidence relates to what he has just been talking about, if the Tribunal were to accept that evidence. Dr Gray replied that it would “neither support nor refute the notion of what I’ve called retrospective falsification”.
It was put to Dr Gray by the respondent that there are at least two possibilities. One scenario is that some form of incident happens and contributes to the development of some sort of a disorder. The other scenario is that somebody develops a disorder, and the disorder results in them becoming increasingly paranoid and anxious and withdrawn and then they look back in time at some earlier event and the more they ruminate on it, the more it takes on a different significance, and the more they effectively convince themselves that that is what must have caused their condition because it happened beforehand. Dr Gray stated that “in theory those things are certainly plausible. … We construct memories for things that, you know, didn’t happen in the way that we actually deal with them, and that happens”.
Dr Gray was asked if both scenarios involve perceptions. Dr Gray was of the opinion that the second scenario would be seen more often where there is maybe a bipolar disorder or major depression with psychotic features.
Dr Gray was referred to psychotic illnesses where a person is completely delusional and the event never happened and other types of disorders where the events really did happen. Dr Gray was asked whether it is possible in the latter circumstance for perceptions to not result from the event at all but to be a symptom of the change in the way that their mind worked because of some other event in-between. Dr Gray responded: “Well, that’s possible”.
Dr Gray was given “three broad scenarios” and then asked how that affects his opinion. Scenario one was:
“The applicant and the person that was involved with the incident, his name’s Mr Flockhart. So, the applicant and the Mr Flockhart are friends. They have an ongoing healthy rivalry about AFL and Rugby. They do lots of things together. They go fishing. They spend time together. They are generally very friendly and they have this ongoing banter. On the night in question, they get into a car together and there’s some banter going backwards and forwards where they refer to each other with their nicknames. They talk about AFL and Rugby. This continues on to the wharf and they get into some sort of a game where they begin tackling each other and at some point, for some reason, the applicant tackles Mr Flockhart quite hard and he ends up getting injured. Now, it’s not intentional. It’s essentially an accident or it’s, you know, a boisterous activity that’s just worked out wrong. But as a result of that, and a result of somebody being injured, the injured person’s aggrieved and sort of yells at him. He’s upset by that at the time and ultimately goes through a process where he is concerned on the night because he is been yelled at but in the morning he apologises. The apology is accepted. Everybody, to some extent, moves on but there is an investigation then lodged into why the injury happened. The investigative process itself causes him to be concerned that he may now get into trouble for why the person got hurt and he’s reassured along the way by his supervisor that he understands it to be an accident but, you know, it needs to be reported. Ultimately there’s a decision made that no further action is to be taken and somebody sits him down and explains to him that, you know, while they understand it’s an accident there is a code of conduct that he’s required to abide by and they remind him that in the future, you know, you need to abide by that. He’s generally relieved but it’s also a bit upsetting to him and so for a short time afterwards he’s upset in the sort of “when bad things happen most people get upset” way. This lasts about a month, after which time it largely resolves and he goes on other patrols but by now it’s water under the bridge. There’s no ongoing ostracisation or anything of this nature. He serves on the patrol with the guy that was involved in the incident, gives him some lobsters and they work together and effectively work on productively. He sees Dr Watson, and other health practitioners, and they don’t note any psychiatric issues, even though they engage in some very general questions about how he’s feeling and things essentially move along but over time he gets greater and greater difficulties as a result of his physical conditions, ultimately resulting in him leaving employment. He leaves employment due to the physical conditions. This causes him distress and a loss of face essentially because he’s lost his career and/or retired and that, in itself, is a stressor potentially, isn’t it?”

Dr Gray agreed at that point of the first scenario that this could give rise to an adjustment disorder.
Dr Gray was presented with the continuation of the first scenario, that after the adjustment disorder, the applicant:
“becomes increasingly paranoid. He begins to think he’s been judged. Sits up and ruminates and then thinks back on how it came to be that he’s no longer working for Customs. When he thinks back to the incident, he can’t remember some things, other things take on a greater significance and now the more he thinks about it and talks to his wife, the more he feels wronged. Over time the condition that’s developed from the redundancy turns into the condition you see and you meet with him and ask him about it and then he describes things in the way that have been described to you”.
Dr Gray was asked whether it was possible to diagnose an adjustment disorder at or shortly after the time of the incident in 2011, bearing in mind the requirement for development of the emotional or behavioural symptoms within three months. Dr Gray replied: “I don’t think so”.
Dr Gray was asked to assume that at the time when the applicant met him he had a mixed anxiety depressive disorder which developed out of an adjustment disorder that started at around the time of the redundancy. Dr Gray was asked consider whether he would say that the mixed anxiety or depressive disorder was contributed to, to a significant degree, by the incident and the matters in 2011. Dr Gray sought clarification of the notion of “significant” and was told that significant means substantially more than material.
Dr Gray was given a second scenario in which the applicant and Mr Flockhart are friends. There have been some interactions in the car that the applicant, rightly or wrongly, perceives as being harassment and what happens on the wharf goes a bit far and the applicant feels that he has been hit hard. The applicant reacts to this and knocks the other person to the ground and at the time he’s yelled at and he does feel very upset by that and the process continues. There has been an investigation. The applicant is very distressed by either the incident or the fact that he feels he could be in disciplinary trouble and going to lose his job because of the meeting afterwards where he is referred to the code of conduct. He continues to be distressed throughout December 2011 and for the early months in 2012 but, ultimately, he goes on a subsequent patrol, but he is quite upset by that and continues to be upset for that month but also continues to be upset for up to six months following that, but ultimately by the time of the subsequent patrol in April, or sometime later, they have all apologised and moved on. The applicant and the alleged perpetrator of the incident on the wharf, or the other participant, at that stage make up and the applicant gives him some lobsters. The other guy says that it is okay, the applicant does not need to keep apologising. Everything seems fine and it settles down for a time. The final part of the second scenario that was put to Dr Gray was that the applicant leaves employment, looks back, continues to ruminate and become paranoid and judgmental. He feels judged in the way that has been suggested by his wife, and another adjustment disorder arises as a result of that and develops into the depressive and anxiety disorder Dr Gray is talking about and then the applicant goes to see Dr Gray. Dr Gray was asked whether in that context, it would be possible to diagnose an adjustment disorder within the three months of the alleged stressor. Dr Gray said, “Well, probably”.
Dr Gray was asked to assume in this second scenario where the applicant and Mr Flockhart resolve the dispute within six months of the ending of the stressor and that there is not the ongoing ostracising and people not eating food and walking out of the mess, rather that essentially everyone gets along after that and there is no evidence of ongoing symptoms beyond the six months, but then there is another condition that arises after the redundancy. Dr Gray was asked would he say that the mixed anxiety and depressive disorder that he diagnosed when he saw the applicant was contributed to, to a significant degree, by the event in question in 2011. Dr Gray answered: “That one’s difficult to offer an opinion on. I am wanting to know, whether or not within these scenarios, it’s not just the incident, whether he’s dealing with the issue of being culturally disrespected”. Dr Gray added, “I’ll say, yes, it’s probably significant”.
Dr Gray was referred to the final third scenario in which the events happened the way that they were described to him during his assessment. The events were recounted to Dr Gray in the following way:
“…They were mucking around and someone accidentally got hurt, or there was something deliberate, he’s quite distressed by being essentially told off by a superior on the night and… subsequently being referred to the code of conduct and those symptoms don’t resolve. They continue but just aren’t brought to the attention of Dr Watson in a way that he recognises as being significant, and the redundancy happens. It gets much worse and then you see him and, at that point, do your assessment.”
Dr Gray was asked whether in that context he considered that the events contributed a significant degree to the disorder as it appears at the time that Dr Gray saw the applicant. Dr Gray answered, “Yes, I would”.
Dr Gray was asked to draw a distinction between something that may contribute in a way that, for example, is material and something that contributes in a way that is substantially more than material. He stated that he did understand the distinction.
Dr Gray was referred to his report where he stated that one of the significant matters that the applicant referred to was a fear of a loss of career. There is a reference in the report to the investigation into what occurred:
“Mr Stephen said that the skipper of the vessel read him the code of conduct. It appears that no further action was taken, but Mr Stephen then was in fear of his lost career…
The impact of the above events led to significant distress and worry…”
Dr Gray was asked if it is correct to say that the applicant’s sense of fear of the potential of getting into trouble or losing his career was significant in the contributory chain that Dr Gray had been talking about. Dr Gray answered: “I think it was early on… during the phase or diagnosis of an adjustment disorder, albeit in retrospect”.
Dr Gray then was questioned in this third scenario, where essentially the adjustment disorder commences around the time of the event, or shortly after it in the three months following the event and the symptoms continue. Dr Gray was asked whether in that scenario, it is fair to say that a significant contributing factor to that disorder was the applicant’s fear that he would get into trouble and/or potentially lose his career. Dr Gray answered:
“I think that was initially but I think by the time the adjustment disorder evolved, it would be hard to argue that that fear of loss of career was a significant underlying factor, by that stage. So, it does show that it was significant with respect to the adjustment disorder but not with respect to the mixed anxiety depressive disorder, bearing in mind that one is an evolution of the other”.
Dr Gray was asked to explain why by the time the mixed anxiety and depressive disorder developed, the fear of loss of career was not a significant factor to the development of that disorder when it developed. Dr Gray stated that the issue with respect to the loss of career is very much to do with the incident on the wharf causing Mr Flockhart to say something to him. Dr Gray remarked that the incident with the commanding officer was quite significant early on, within a month or a couple of months, but thereafter it really lost its significance and intensity as a stressor for the applicant because it had been dealt with and clearly he had not lost his job.
Dr Gray was asked to confirm that the adjustment disorder was very significant in the contribution to the other condition, because the other condition was essentially an evolution of it. Dr Gray answered: “That’s right”. Dr Gray remarked that in discussing the etiology or causation of adjustment disorder that, “it’s a bit like saying smoking causes lung cancer. Now the person then stopped smoking but the lung cancer got worse and blocked off their airways, they might get pneumonia but initially the problem is smoking”.
Dr Gray was asked to assume that when the applicant was referred to the code of conduct that the applicant considered that to be unfair and distressing because he considered they were reading the code of conduct to the wrong person and that they should have been reading it to the other person involved in the incident. Dr Gray was asked whether the applicant’s perception later on, feeling culturally disrespected by somebody superior to him, whether that could then continue to have a significant impact on the subsequent development of the condition. Dr Gray answered: “Yes, it could in those circumstances”.
Dr Gray was asked to clarify in his final report (paragraph 5) where he referred to the investigation and the skipper reading him the AGS code of conduct, where Dr Gray remarked:
“The investigation… would have been a contributing factor to the diagnosed adjustment disorder (at the time), although I am unable to be definitive about to what degree. That said, however, I do not consider it would have been the major significant factor, based on the history Mr Stephen provided to me.”
Dr Gray was asked whether reading the code of conduct would have been a factor but not a significant factor or whether he was saying that it would have been a significant factor but not the major significant factor. Dr Gray stated that in considering adjustment disorder causation he thought it was a significant factor, but he could not say that it was a major contributing factor because there are a number of other things that were significant stressors for the applicant at the time.
There was no re-examination of Dr Gray by the applicant.
SUBMISSIONS OF APPLICANT
The applicant gave evidence that English is his third language and he had limited education. Mr Flockhart and Mr Thurtell, who had both worked closely with the applicant for many years, gave evidence that they spent time assisting the applicant with paperwork. During the course of his evidence, it was apparent that the applicant was taking considerable time to read and understand documents put to him for comment.
Evidence was led from Dr Gray that the applicant's recollection of the material events could be influenced by the nature of his mixed anxiety and depressive disorder. The applicant's evidence was prepared without the benefit of full disclosure by his employer of its records and in particular, Mr Murphy's notebook[12], the email correspondence between Mr Murphy and Mrs Stephen[13] and a signed copy of the letter from Mr Perry to the applicant.
[12] Exhibit I, Copy of Mr Murphy’s notebook
[13] Exhibit E, Copy of email from Mrs Stephen to Mr Murphy dated 3 November 2016
There is an email from Mr Murphy to the applicant dated 3 November 2011[14], and Mr Murphy’s notebook indicates that the applicant spoke to Mr Murphy prior to completing his letter to Mr Murphy. In particular, Mr Murphy's notebook[15] contains a note of a conversation on 31 October 2011 and 1 November 2011 between the applicant and Mr Murphy. It is noted therein that the applicant told Mr Murphy “he ran at me from behind”. It was clear that the applicant obtained help in producing typed written documents from his wife, Mrs Stephen. Mrs Stephen gave evidence that her assistance was limited to the mechanical task of putting into the documents what she had been told by the applicant. In some cases she said it was a transcription of notes that had been written in handwriting by her husband that she used to produce typed written documents.
[14] Exhibit D, Copy of email from Mr Murphy to Applicant dated 3 November 2016
[15] Exhibit I, Copy of Mr Murphy’s notebook, p. 60
The applicant submits that at the time the letter was being prepared he was already upset. He was also in circumstances unfamiliar to him. He suffered the disabilities of dealing with authority that arose from his antecedents. None of the witnesses, including the applicant, could explain how it was that when the applicant spoke to Mr Murphy and expressed concern about matters such as Mr Flockhart running at him from behind, the only information he gave to Mr Murphy for the purposes of the administrative follow-up to the incident was a letter of apology. It is not disputed that Mr Flockhart spoke to the applicant and other crew members about the incident and the potential need to give a report. Mr Murphy says in his notebook[16] that collecting the reports was “consuming all my time right now”. The inference can be drawn that if Mr Flockhart did not suggest the form of the apology, Mr Murphy suggested that the applicant’s letter should accord with the idea that Mr Flockhart and the applicant were having a game of fun and the injury was the result of an accident. It is possible that the applicant was mistaken in his recollection that Mr Flockhart had as much involvement in the production of Exhibit E as he said in his written evidence. That however would not be a matter by itself that should give the Tribunal any concern as to the possibility the applicant was attempting to deliberately mislead the Tribunal.
[16] Exhibit I, Copy of Mr Murphy’s notebook, p 61
Paragraphs 40, 41 and 42 of the applicant’s witness statement outline dealings with a number of officers about the investigation into the incident. On balance, the evidence shows that the applicant did have numerous dealings with various customs officers about his foot condition and its impact on his ability to work. While the drafting of the statement is not helpful it is fair to read the statement as meaning there was no response during those dealings (save for the meeting with Denise Kenneally referred to in paragraph 37 of the statement) that a formal complaint was required before there would be any investigation. This message was given later.
The applicant's perception that he was ostracised by crew members was contradicted to some extent by the evidence produced on the day of the hearing, showing that rosters meant that there was limited time that the applicant spent with the crew members directly involved in the incident. This aspect of the applicant's evidence should be weighed carefully having regard to the evidence of Dr Gray about the impact of the injury on how the applicant would remember and perceive relevant events.
The evidence of the applicant that he was suffering from anxiety depressive symptoms after the incident is corroborated by Mrs Stephen and Mr Frost. It is also more significantly corroborated by the information provided in documentation by Denise Kenneally about the applicant’s state of mind when they met after the applicant asked to be assigned to a vessel where he did not have to deal with Mr Flockhart. It would be consistent with all the circumstances that the applicant is correct to the extent that his relationship with crewmembers, and particularly Mr Flockhart, Mr Summers and Mr Thurtell changed after the incident, but in ways that were subtler than the applicant's recollection of being shunned in the mess or recreation rooms and his meals not being eaten. That is, the Tribunal could readily accept that he felt ostracised even though there may have been no overt action and there was continued cooperation in the professional sense between the individuals involved.
The applicant on one occasion gave crayfish to Mr Flockhart at the same time as doing the same for other crew members. The applicant did not, or would not, dispute that Mr Flockhart and Mr Thurtell continued to work well with him on the occasions they were rostered on the same patrols with him. It was not part of the applicant's evidence that he treated those individuals differently after the incident; it was rather his case that they treated him differently.
The applicant said that Ms Martin intervened in the arguments between the applicant and Mr Flockhart on the dock. Ms Martin corroborated this but only to the extent she intervened when the argument continued on the aft deck of the vessel.
The applicant's evidence was consistent with the history he gave to Dr Gray and, subject to some inconsistencies about precisely what happened during the incident on the wharf and in the car, the evidence from other crew members and the limited contemporaneous documentary material corroborates his story.
Mrs Stephen gave evidence by statement and was cross-examined. In cross-examination Mrs Stephen generally did not depart from her written evidence in chief.
During an examination about the course of conversations between the applicant and his doctors, she answered when asked about what Dr Watson said on a particular occasion, “I can’t remember. It was a long time (ago)...”[17] The evidence is that there were a very large number of attendances by the applicant, often accompanied by his wife, upon doctors because of his various medical conditions and that there were meetings with doctors about his psychological condition after May 2015. An inability on the part of Mrs Stephen to remember all that was said between the applicant and his doctors, or any inaccuracy in her recollection about those matters found during her cross-examination would not reflect badly on her evidence generally.
[17] Transcript of Proceedings, Day 2, 8 November 2016 at p. 130
Mrs Stephen gave valuable evidence about the applicant’s state of mind on the evening of the incident and in the period he was at home prior to his leaving for the November/December patrol. She conceded that the symptoms suffered by the applicant became far worse after he finished work upon his redundancy but at the same time gave evidence that the fact he needed to cease work of itself was not something that to her observation played upon the applicant's mind.
Ms Patricia Martin gave evidence by statement. Ms Martin was careful in her written statements and evidence in cross-examination before the Tribunal not to state positively any fact she was unsure of. The clearest instance of that was her refusal to speculate as to what was being said in the argument on the aft deck between the applicant and Mr Flockhart.
Most of her evidence on significant matters is corroborated, particularly her evidence in examination in chief about the meeting the day after the incident, and the evidence about Mr Murphy being in his cabin when the crew, including the applicant and Mr Flockhart, boarded the vessel.
There are inconsistencies between all the accounts of the actual incident on the wharf. It would be fair to say, as was conceded by Ms Martin during cross-examination, that she did not see all of what occurred. It should be accepted however, that at one point she saw Mr Flockhart running and she saw or heard enough to understand that after this event Mr Flockhart struck the fence. It is unlikely, given no other witness said they saw the applicant running and the applicant's foot condition, that he would have been running as is recalled by Ms Martin. Ms Martin gave evidence that she was familiar with NRL and the height and weight of Mr Flockhart. She gave evidence that she did not see the applicant lift Mr Flockhart and said she did not think this could occur. Her evidence therefore supports the thrust of the evidence from the applicant that at one point Mr Flockhart ran at him and that after the two connected Mr Flockhart ended up on the ground. This is a far more likely scenario than that put forward by Mr Ellison of the applicant lifting Mr Flockhart not once but twice and on each occasion dropping him on the ground.
Ms Martin, again being careful not to give evidence of matters she could not recall in detail, gave evidence that she received a message from a conversation with Mr Murphy that she should change her draft report about the incident. She used the words “he didn’t say the actual words but he implied to leave some of my notes out”. Mr Murphy claimed to have a better recollection of the conversations and gave evidence (to paraphrase) that he was careful to say no more than Ms Martin use your own words, be truthful, but stick to what is relevant. The entreaty to limit the report to what was relevant would be sufficient to imply to Ms Martin that she was to deal only with the incident on the wharf rather than any associated incidents before or after that incident and caused her to submit the final version of her report.

Ms Martin was clearly uncomfortable with the contents of her initial report to the extent that it contained the statement “I thought nothing more than two guys mucking around and having a playful game of footy.” She attempted to convey in cross-examination that looking back on it now it did appear that way (that is, she was still comfortable that her statement was truthful) but that while it may have led her to think there was a game of footy going on she now appreciated it may not have seemed like a game to those involved. In any case, what she thought may not be to the point.
Mr Frost gave evidence by telephone verifying a written statement. The significance of his evidence is that he found the applicant to be “withdrawn and basically quite sad”. He said that he noticed the difference quickly after joining the vessel in November 2011.[18]
[18] Exhibit F, Witness Statement of Mark Frost dated 13 October 2016 at [5]-[6]
At paragraph 8 of his evidence he said that subsequently at a dinner in town the applicant explained what took place in the previous patrol. There is no suggestion in his evidence that at that time the applicant complained about anything in relation to his dealings with Mr Murphy or his having the code of conduct read to him.
Mr Murphy gave evidence by his statement and orally. There is no transcript available to me of his evidence. He gave evidence about his notebook. The notebook contains only records of those matters seen as significant by Mr Murphy at the time. It is by no means a complete record as was asserted by Mr Murphy at one stage during his evidence.
His evidence was substantially contradicted about the events of the evening 30 October 2011 in that he gave a story of being in the mess on the vessel when the crew returned from the town centre where he could see the crew boarding the vessel and that he did not hear any argument between the applicant and Mr Flockhart. This was contradicted by all other witnesses. Mr Flockhart readily conceded that he was angry and there was a confrontation between him and the applicant on the vessel conducted in such a fashion, including the use of profanity, that is totally contradictory to Mr Murphy's recollection that he did not see or hear anything of this sort.
In evidence in chief Mr Murphy gave evidence to the effect that it was his responsibility to “get to the bottom” of what happened. It is apparent that that is not what he intended to do but rather as recorded in his notes he attempted to control what occurred by persuading the applicant and Mr Flockhart not to make complaints against each other, and rather take the line there had been some sporting type event or game on the wharf. The difficulty with Mr Murphy’s evidence in this respect and his report to his superiors is that he described the event as a "sporting related activity".[19] No crew member has said there was a game going on, nor did Mr Murphy say that is what he was told. It is not suggested by Mr Flockhart in any of his evidence that there was a ball in play or that there was any express verbal agreement to exchanging tackles. Even if there was discussion about what was the “premier football code” on the wharf between the two of them that could not have alerted the applicant that he was to be bumped or tackled from behind by Mr Flockhart with no warning beyond Mr Flockhart saying “AFL”.
[19] Exhibit A, T-documents, T7.9 at p. 87
Mr Murphy's evidence studiously skirts around expressing any concern about the consumption of alcohol. This should have been a matter he gave some thought to given Mr Murphy knew that something untoward had occurred involving a man who Mr Murphy had last seen drinking in a bar hours before. Mr Murphy was concerned to do his best to ensure that there would be no worse implication for Mr Flockhart, and perhaps also the applicant, beyond a “slap on the wrist” or the reprimand ultimately delivered rather than attempting to find out precisely what happened.
Mr Murphy's assertions that there was mucking around that went wrong seems inconsistent with his note on page 65 referring to anger management as a possibility for the applicant.
The evidence about the fate of the letter from Mr Perry to Mr Stephen is extremely unclear. The applicant did not have any recollection of receiving the letter at the time he prepared his evidence. The applicant could not have received it by post as it was sent after he had left his home to go on patrol. It was possible he could have received this by email although absolutely no evidence was led that it was sent to him in that manner. Mr Murphy says in his evidence that he “went through the letter” with the applicant. His note says “S/T Punka regarding letter concerning incident he received from MOSND”.[20] It is likely that Mr Murphy discussed what was in the letter but did not give the letter to the applicant or read its contents to him in so many words but rather discussed its contents a general way without reference to it.
[20] Exhibit I, Copy of Mr Murphy’s notebook, p 65
It is possible that in the end the applicant’s employer decided not to send the letter directly to the applicant but rather have Mr Murphy simply explain what had occurred to him. The recollections of the applicant are not consistent with the point being made clearly in the letter that it was the end of the matter, and that supports the proposition the letter was not given to him. It may have been that in the process of Mr Murphy trying to communicate the matter was at an end, and at the same time delivering the warning regarding the code of conduct, that he was distracted from communicating that and failed to do so because of the applicant complaining that he should not be the subject of a warning or a reading of the code of conduct.
Mr Murphy described Mr Flockhart as the victim of the incident and said that the injury “wasn't intentional”. He gave evidence that the decision for an investigation was made by Terry Price through Ms Kenneally. The explanation he offered for not referring to any incident in the car was because the “best information” was that the incident on the dock had nothing “to do with retribution”. He said “the whole thing was an accident”. This is the position Mr Murphy took, notwithstanding that the complaint was made immediately after the incident that Mr Flockhart had acted inappropriately in his dealings with the applicant in the car. Mr Murphy's handwritten note in respect of the complaint includes the phrase, “Flocky crossed the line”. The note records the complaint by the applicant to be about the conduct of Mr Flockhart.
Mr Murphy stated in an email to another employee,[21] “throughout my time on board I did not hear the terms ‘big P’ or ‘big A’”. His note of 30 October 2011 shows that he is incorrect in that regard as it reads "he calls me ‘big P,’ I call him ‘big A’”.[22] Mr Murphy also says in his statement that "the phrase ‘I'm going to write you up’ is not a phrase I have ever heard used on a patrol towards anyone”. Mr Flockhart said in evidence that that was the phrase he himself used when speaking to the applicant.[23]
[21] Exhibit H, Witness Statement of Greg Murphy, Attachment C
[22] Exhibit I, Copy of Mr Murphy’s notebook at p. 56
[23] Transcript of Proceedings, Day 2, 8 November 2016 at p. 12
At no time did Mr Murphy tell anyone there was a prospect of any code of conduct investigation being undertaken. Suzette Tucker says in correspondence[24] that at the time of the investigation “there was concern in relation to the fact that he [the applicant] could very well lose his job”. It follows that Mr Murphy revealed only part of what occurred in his dealings with his superiors. It is impossible to make a finding about whether this was done to help the applicant or Mr Flockhart, or both, in the absence of full disclosure by Mr Murphy and others of what occurred.
[24] Exhibit A, T-documents, T10 at p. 116
Mr Ellison gave evidence at the hearing. In his evidence, Mr Ellison denied that Mr Flockhart and Mr Summers were not intoxicated but described them to all be in “good spirits”. The applicant submits that should be taken to mean affected by alcohol but not badly affected.
Mr Ellison was mistaken about the location of people in the vehicle as he placed Ms Martin in the middle row next to the applicant. Mr Thurtell, Ms Martin and the applicant all gave evidence that this was not the case.
Mr Ellison revealed that he had strong feelings about what occurred at the crew member meeting on 30 October 2011. When challenged about the discrepancy between his description in evidence in chief of the applicant tackling Mr Flockhart by holding him up by the waist and dropping him, and in doing it again, and where in his report he stated that Mr Flockhart and the applicant were “mucking around”,[25] Mr Ellison said words to the effect that he was concerned in giving his report to ensure that Canberra did not intervene in an unwanted way. Accordingly, Mr Ellison has conceded he was prepared to tailor his evidence to advance a cause at the time he provided his report to his employer.
[25] Exhibit A, T-documents, T7.9.1 at p. 89
Mr Ellison said orally that there was a shoulder charge on Mr Flockhart by the applicant which caused Mr Flockhart to fall into the fence, or strike the fence. This is consistent with the applicant's version that there was a shoulder charge in the sense that the applicant braced himself for impact when Mr Flockhart came at him and that Mr Flockhart in effect bounced off and then fell to the ground. Mr Ellison's suggestion that the applicant then lifted Mr Flockhart up by the waist and dropped him to the ground seems inconsistent with a description of a tackling manoeuvre. It is consistent, at least to some degree, with the applicant's description of his holding Mr Flockhart around the waist after he had been hit by him from behind and then lifting him a little off the ground while telling him to stop. Mr Ellison did not describe a tackle where the applicant was able to use the momentum of Mr Flockhart and some skill to complete a spear type tackle where by Mr Flockhart's feet were taken clear of the ground, his body rotated and then dropped on the ground in a horizontal position or with his head hitting the ground first.
Mr Flockhart gave evidence by telephone. His version of events is not consistent with the report he gave to his employer in the minute paper he provided with respect to the incident. The minute paper (see T7.5.1 at page 77) refers to only one bump on the back of the shoulder and says, “Frank then came from the side and picked me up to around chest height, Frank then lost grip of me and I fell to the ground landing on the right side of my chest. Frank again picked me up with the same result.”[26] In contrast, in his oral evidence he said:
“…at that stage I was with Frank on the left side and Frank (indistinct) on the back of the shoulder (indistinct) AFL. I did that on two separate occasions. From there, I was walking along (indistinct) not sure how (indistinct) tackle but I landed on the cyclone fencing. I landed on the cyclone fencing and then it appears that Frank tried to pick me up and he just put me over his shoulder or actually try to (indistinct) but lost grip and I fell to the ground on the right side.”[27]
[26] Exhibit A, T-documents, T7.5.1 at p. 77
[27] Transcript of Proceedings, Day 2, 8 November 2016 at p. 9
Mr Flockhart was asked about whether he had kicked the applicant to which he responded “that's completely false. I was on the ground, that is correct. I was winded on the first bump struggling to actually get up and that's when I was scooped up on the second time”.
The applicant submits that looking at Mr Ellison's evidence of a shoulder charge putting Mr Flockhart into the fence and the applicant's recollection of a collision resulting in Mr Flockhart falling to the ground, the statement by Mr Flockhart that he was winded on the ground after the first "bump" supports the conclusion there was a collision between the two men causing Mr Flockhart to fall to the ground and hit the fence, rather than him being lifted in a tackle and dropped to the ground.
It is unlikely that the applicant would have been able to lift Mr Flockhart off the ground, lift him up and then drop him. Such an action is not consistent with the description of what was seen by the other people as rugby type tackling. Any tackle by the applicant was, looking at the entirety of the evidence including that from Mr Flockhart that, as Mr Flockhart said, that the applicant grabbed him around the chest, lifted him off his feet and then lost grip resulting in the applicant falling to the ground from a standing position.
As mentioned above Mr Flockhart did concede he had threatened to “write the applicant up”. He denied speaking of frying the applicant but conceded he was angry and used colourful language to express his unhappiness about being hurt in his altercation with the applicant.
In his evidence in chief Mr Flockhart said he had one beer at the deck bar. His exact words were “we had one stubbie before we departed the deck bar”[28] and that he had “probably… four beers and a glass of red wine at the noodle house”.[29]
[28] Transcript of Proceedings, Day 2, 8 November 2016 at p. 6
[29] Ibid at p. 7
Mr Flockhart said he was on Facebook in the car on the way back from the town to the wharf. This seems inconsistent with the evidence from Mr Ellison about conversations continuing in good humour. The applicant submits this contradictory evidence should be seen as an attempt to hide the truth that he was annoying or harassing the applicant during the car ride.
Mr Thurtell says he recalls that what was happening in the car was “a little bit of friendly banter about football codes.”[30] That is inconsistent with what Mr Flockhart and the applicant say about their interactions. If Mr Thurtell is correct in that recollection, the only people that were likely to have been involved in such banter would be Mr Flockhart and the applicant.
[30] Ibid at p. 30
Mr Thurtell denied having any recollection of any drinking being undertaken at the Noodle House. He confirmed that the likely stay at the restaurant was from about 8:00pm to 9:00-9:30pm. This again casts doubt on the reliability of Mr Thurtell’s recollections given the other information and evidence is that the other people eating at the noodle house were drinking alcohol.
Mr Mansfield did not give evidence at the hearing but submitted a report which states that he, Mike Thurtell, Andrew Flockhart and Wes Summers stayed at the deck bar for about two hours and were at dinner for a short period and that over the course of the evening he consumed six mid strength beers over the four and a half hour period they were away from the vessel.[31] He did not witness anything relevant to the incident.
[31] Exhibit A, T-documents, T7.9.1 at p. 90-91
Mr Summers stated that he, Mike Thurtell, Tony Mansfield and Andrew Flockhart “decided to go up to the Deck Bar in Mitchell Street for a few quiet beers”. He stated “I recall having about five light beers whilst there.” He says he recalls paying the restaurant account at about 9:30pm.
The applicant seeks the following findings of fact:
(a)Andrew Flockhart was under the influence of alcohol at the time of the incident on the evening of 30 October 2011.
(b)On 30 October 2011 Andrew Flockhart drank four beers and one glass of wine (at least) during the period of about one hour and 15 minutes; consequently he was well over prescribed limits for driving a motor vehicle and affected by alcohol.
(c)The observations of the applicant and Ms Martin, and the evidence of Mr Ellison about the state of Mr Flockhart and the others he picked up from the Monsoons Bar described as “happy”, supports the conclusion of intoxication. Mr Summers says in his statement[32] that he and three others went to the Deck Bar “for a few quiet beers”. He says he recalls having about five light beers there before going to dinner at 8:00pm. He says at dinner he had one glass of red wine. Mr Flockhart said that the crew members mostly drank ice water at the Deck Bar. This is inconsistent with what Mr Summers said and Mr Murphy's evidence that he had two drinks while at the Deck Bar. It is likely the consumption of alcohol was understated by Mr Flockhart.
[32] Exhbiit A, T-documents, T 7.9.1 at p. 91
(d)During the trip from Mitchell Street to the wharf Mr Flockhart harassed the applicant by touching on his head and by making fun of his totem name and nickname, “big P”.
(e)On the wharf, Mr Flockhart either bumped into or ran into the applicant without warning and without the applicant consenting to such contact by, for example, agreeing to engage in a mock football game.
(f)There was a physical altercation between the applicant and Mr Flockhart that concluded with Mr Flockhart on the ground on his back having suffered an injury to his ribs and ankle.
(g)At no time did the applicant lift Mr Flockhart into the air to any significant extent. Rather he lifted with his arms around the waist which would have resulted in Mr Flockhart's feet never being very far off the ground.
(h)At one point Mr Flockhart ran at the applicant who responded to the charge, the two men collided and Mr Flockhart ended up hitting the fence and falling to the ground.
(i)After the event the applicant and Mr Flockhart went on to the vessel at which time on the aft deck Mr Flockhart proceeded to address the applicant in an angry way and during such address he swore at the applicant and said he would "write him up".
(j)The applicant had an immediate and dramatic emotional response to the incident and the threat.
(k)The next morning Mr Murphy left the vessel in charge of Mr Flockhart who convened a meeting of all crewmembers to discuss the incident. The meeting was unpleasant and did not involve Mr Flockhart withdrawing his threats against the applicant. It should be inferred the purpose of the meeting was to have Mr Flockhart encourage the crew to cooperate in responding to any investigation into the incident in a way that was most likely to protect his interests.
(l)Mr Flockhart endeavoured to bully the applicant and Ms Martin into abandoning any challenge to his version of events.
(m)The weight of the evidence is certainly to the effect that the applicant made an apology and expressed regret to Mr Flockhart about his injury and the applicant’s involvement in the injury. The evidence about the subsequent meeting however, and the notes provided by Mr Murphy to the effect that Mr Murphy and Mr Flockhart discussed several times over a period of days up to 3 November 2011 the prospect of Mr Flockhart making a complaint that he had been deliberately harmed by the applicant, are sufficient to make a finding the apology was not immediately accepted.
(n)After this meeting the applicant was concerned that he could lose his job over the incident, was shattered in that he had been a long-time friend of Mr Flockhart and the rest of the crew, and had rightly observed that other members of the crew would be prepared to support Mr Flockhart and not the applicant with respect to any repercussions from the incident. He felt disrespected.
(o)Mr Flockhart needed to be persuaded by his superior officer Mr Murphy that it would be in his best interests not to pursue his threats of complaining that he was deliberately harmed or assaulted by the applicant.
(p)Mr Murphy persuaded the applicant to take the line that the injury to Mr Flockhart was a game that had gone wrong and to abandon complaints against Mr Flockhart in respect of any harassment.
(q)Mr Murphy had told the applicant to keep it on the boat and he had probably not needed to say that to the other crewmembers who were all trying to manage the situation as a group.
(r)Between 3 November 2011 and the commencement of the November/December patrol in 2011, the applicant developed an adjustment disorder manifesting itself in anxiety and a depressed mood.
(s)On 2 December 2011 Mr Murphy, on behalf of the applicant’s employer, delivered what in effect was a warning or reprimand of a formal nature to the applicant in person.
(t)The response of the applicant to the warning or reprimand was to question why it was he that was on the receiving end of such action.
(u)The evidence about the delivery of a letter from Mr Perry, the national director of the employer, to the applicant is very unsatisfactory and it is extremely difficult to determine what occurred in that respect.
(v)There is no evidence that the applicant suffered any worsening of his symptoms of anxiety or depressed mood on or immediately after 2 December 2011.
(w)The applicant felt that his relationship to crewmembers and particularly to Mr Thurtell and Mr Flockhart had changed and the applicant was able to work on one patrol after the incident with Mr Flockhart without incident. This is neither consistent nor inconsistent with his perceptions as to their relationship, as his complaints were not that colleagues refused to work with him or that he refused to work with them.
(x)The applicant’s feelings of discomfort in relation to Mr Flockhart were objectively manifested before he had to return to work (by his request) on 9 October 2012 when he was put on a customs vessel, other than one with Mr Flockhart, where there was some change in the mood on the vessel.
(y)The applicant's adjustment disorder persisted such that his mental state was diagnosed by Dr Gray much later and the applicant was able to continue working with his mental disorder, but very much on an intermittent basis given he needed to have time off because of physical ailments.
(z)The applicant showed stoicism and persistence in the face of his mental and physical difficulties to keep on working.
(aa)As time passed, the applicant’s attempts to deny his mental disorder meant that once he was no longer working the symptoms became far more obvious and developed to include paranoid symptomology.
(bb)The applicant's condition was not assisted by the fact that during his dealings with the employer arising from his compensation claim for his foot condition, he raised questions about his treatment which were responded to in such a fashion that he did not find any assistance.
(cc)In particular, Denise Kenneally, who conducted the initial investigation on behalf of the employer into the incident, says that she told the applicant he needed to make a formal complaint before the matter could be investigated rather than telling him that it had already been investigated.
(dd)The applicant is prepared to accept that he was verbally told this but the finding should be that his emotional state at that meeting was in extremis and he did not get the message and did not pass it on. The applicant’s wife has given unchallenged evidence that she continued to ask the various officers about what was going on and was left with the impression that something was being done.

The fact that there were few occasions that Mr Flockhart and Mr Thurtell were on patrol with the applicant after the relevant incidents in October 2011 does not negate that there was ostracism by those parties or alternatively that the applicant perceived he was the victim of ostracism. Given those events could have only happened on rare occasions, the significance attached to them, as evidenced particularly by the complaint of the applicant to Ms Kenneally, tends to indicate that well before the applicant was made redundant these events or his perception of the significance of these events of ostracism were then those that a person not suffering a mental disorder would have placed on them.
The applicant accepts and relies upon the exposition of the relevant authorities as set out in the respondent’s submissions. The incidents that the applicant has relied upon include those described in the respondent’s submissions as the car ride, and the tackling incident. The applicant however also relies on the threats admitted to have been made by Mr Flockhart against the applicant on the night of the tackling incident and the meeting convened by Mr Flockhart the following day in the absence of Mr Murphy. It is the combination of those events that the applicant contends relevantly contributed to his ailment.
Dean is authority for the proposition that in the case where a worker may have an unreliable or irrational perception of incidents occurring in the course of his employment, the first question to be determined is one of whether the incident or incidents occurred. There is in effect no dispute on the evidence that the tackling incident, the threat made by Mr Flockhart and the subsequent meeting all occurred. As far as what happened in the car ride even the notes made by Mr Murphy show that there was something said that offended the applicant.
The principles as set out in Dean at [12] are that an applicant needs to prove there was an incident rather than showing the incident occurred as the applicant perceived it occurred. In most cases, it is therefore not necessary to determine precisely what happened in the events and then compare them to the perceptions as related by an employee suffering a disease.
The applicant’s case is that the perceptions of events as variously described by the applicant in the proceedings and when speaking to Dr Gray were the perceptions he had in the months immediately following the relevant events and up to the time of the hearing. Dr Gray has provided expert opinion that is to the effect that the events as described correlate with the sort of events that can cause a disease. He also gave evidence that this sort of disease could result in the applicant being unreliable in his perception of the relevant events. Dr Gray was not of the opinion that the perceptions arose because of the impact of the other stressors suffered by the applicant.
No evidence was adduced and no submission has been made that the applicant had any “nervous condition” that predated the incidents of the sort adverted to by Perram J in Dean at [9]. Rather, the submission from the respondent is that both the ailment and the relevant perceptions arose after November 2013 at a time subsequent to the termination of the applicant’s employment. Therefore, while there is reference to case law and authority related to inaccurate and unreliable perceptions cited by the respondent, the respondent is in effect, in the paragraphs under reply, seeking findings of fact that negate the applicant’s entitlement.
The applicant agrees that the reasonableness of relevant administrative action is not to be judged solely by reference to compliance with an employer’s guidelines, such as those guidelines relied upon by the applicant in this case. Such guidelines however must be relevant in determining the reasonableness of employer action as at the very least it would be a useful guide to what could be reasonably expected. This much is said in the extract from Re Moore and Comcare [2011] AATA 615 included in the respondent’s submissions.
Exhibit N at page 5 exhorts employees such as those who conducted the investigation into the events giving rise to these proceedings to act fairly and to comply with the principles of natural justice. It has been accepted that, regardless of any internal guidelines like those contained in Exhibit N, the question of whether an employee has been afforded natural justice in the course of administrative action is relevant to assessing the reasonableness of such action (see Lynch v Comcare [2010] AATA 38 at [132]); and whether the action was fair (see Re Inglis and Comcare (1997) 49 ALD 183, 184).
The conduct of the investigation was inextricably linked to the result of the investigation which was Mr Murphy talking to the applicant about his compliance with the code of conduct. If that event is found to be causative of the ailment the subject of the application for compensation (which is not the applicant’s case) it will be necessary to determine whether all of the actions of Mr Murphy and others that resulted in Mr Murphy ultimately reading the code of conduct to the applicant were reasonable for the purposes of the statute.
CONSIDERATION
The Tribunal will have to determine whether the condition for which the applicant seeks compensation can be considered a “disease” or an “injury” under the Act.
There is no issue that the mixed depressive and anxiety disorder of the applicant is an “ailment” under section 5B(1) of the Act. The Tribunal has to consider whether the ailment is a disease that was contributed to, to a significant degree, by the applicant’s employment with the Commonwealth under section 5B(1) of the Act.
In relation to the incident the applicant has contended that “no crew member has said that there was a game going on”. However, the applicant himself in his initial statement wrote: “The incident was just a game fun and game that went out of hand”.[65] Ms Martin in her initial statement remarked that the incident involved “two guys mucking around and having a playful game of footy”.[66] I do not accept the contention of the applicant that the incident on 30 October 2011 did not involve a game as this was contrary to the initial statements of both the applicant and Ms Martin.
[65] Exhibit A, T-documents, T 7.1, p 68
[66] Exhibit A, T-documents, T 7.91, p 90
The applicant now essentially contends that on the evening of 30 October 2011 he was the victim of harassment and an unprovoked assault by Mr Flockhart. The contemporaneous documentary evidence does not support the contentions of the applicant that he was assaulted on that evening or subjected to any harassment or inappropriate behaviour.
The applicant’s letter which was provided on 3 November 2011 does not contain any claim that he was assaulted or harassed by Mr Flockhart. Indeed, in that letter he refers to both himself and Mr Flockhart as “good friends”. On about 3 November 2011 Mr Murphy was provided with reports from members of the crew being Mr Summers, Mr Ellison and Mr Thurtell. In none of those reports is there any allegation that the applicant was assaulted. Ms Martin in her report said that the incident was “two guys mucking around and having a playful game of footy”. Ms Martin also remarked: “It was discovered the next day Andrew was injured; this happened as a result of the playful footy match between himself and Frank. I believe that Frank had no intention or malice of injuring Andrew at all and unfortunately for Andrew he got hurt in one of his humorous tackles”. There is no allegation of wrongful behaviour by any member of the crew towards the applicant in these reports by Mr Summers and Mr Ellison.
On the evening of the incident the applicant made certain comments to Mr Murphy. His notebook contains the following comments: “Flocky crossed the line, he patted my head. I don’t like that. I have to prove myself in my culture. He calls me ‘Mr P’. I call him ‘Mr A’. He challenged me AFL/NRL style. I have to prove myself. It’s in my culture”. I do not consider that the reference to the applicant as “Mr P” can be regarded as an insult. In his later statement he confirmed that the reference to “Mr P” is a reference to his name of “Punka”.
The applicant in cross-examination stated that he did not remember the conversation that he had with Ms Martin on the evening of the incident. He stated that he did not remember, stating that he was patted on the head or that he had to prove himself because of his culture. I do not consider that his memory of what happened on the evening of the incident is reliable.
The more recent statements made by the applicant and Ms Martin now put forward a completely different account of events than that found in the original statements that were made by them. They now both assert that the applicant was harassed by Mr Flockhart. The applicant now alleges that Mr Flockhart inserted his wet fingers in the ears of the applicant and called him names such as a “poofter”. In giving evidence before the Tribunal Ms Martin referred to the “change of tactics” when Mr Flockhart alighted from the car; she explained that what she had referred to as a “change of tactics” was harassment of the applicant in the car and the challenge to football tackles after Mr Flockhart alighted from the car.
After reviewing the material before me I consider that what occurred on the evening of the incident was that Mr Flockhart challenged the applicant to participate in football tackles. I consider that it is plausible that this occurred having regard to the most contemporaneous evidence which is before the Tribunal. On that evening the applicant informed Mr Murphy that Mr Flockhart “challenged me AFL/NRL style”. I have come to the conclusion that the challenge was accepted as the applicant and Mr Flockhart participated in some tackling moves. The applicant certainly did not indicate to Mr Murphy that he did not accept the challenge. The initial account of Ms Martin was that the applicant used a “humorous tackle” and I have come to the conclusion that this was intended to be a friendly interchange.
There is evidence that before the incident the applicant and Mr Flockhart had been friends and had gone fishing together. Even after the incident the applicant still referred to himself and Mr Flockhart as “good friends”. I have concluded that the applicant did not intentionally injure Mr Flockhart. The applicant initially told Mr Murphy that Mr Flockhart had “ran at me from behind”: this may have been put forward as a reason why the injury had occurred as the applicant had only a short period of time to respond to the tackle.
As Mr Flockhart was injured it was certainly incumbent on Mr Murphy as a senior officer to investigate what had occurred on the evening of the incident. It is clear that Mr Murphy acted promptly in interviewing the staff on the vessel. It was put to Mr Murphy that his notes were not comprehensive and he frankly answered that the notes were his best effort. It was not to be expected that the notes were a verbatim account. However, there is no record in the notes which indicates that the applicant was harassed or assaulted in any way. There is no cogent evidence that when Mr Murphy interviewed the applicant, he told Mr Murphy to indicate that he was harassed or assaulted. If the applicant was harassed or assaulted that would be the appropriate time to make such an allegation. I am mindful that no such allegation concerning harassment, bullying or insulting remarks was subsequently made by the applicant in his letter that was provided on 3 November 2011, or by Ms Martin in her original statement. That is why I consider that the applicant was not subject to any harassment or assault on the evening of the incident.
The applicant now contends that Mr Murphy, who investigated the incident, was concerned to “control what occurred by persuading the applicant and Mr Flockhart not to make complaints against each other, and rather take the line there had been some sporting type event all (sic) game on the wharf.” I do not consider that there is any cogent evidence to substantiate this serious allegation against a serving officer. The original statements that were in evidence which were made by the applicant and Ms Martin, his relative, had indicated that the incident was a friendly sporting event. The applicant stated that the “incident was just a game fun and game that went out of hand”. Ms Martin had referred to “the playful footy match”.
I do not accept the assertions of Ms Martin that in the initial draft of her original statement that was provided to Mr Murphy she had reported acts of harassment against the applicant which contained the word “poofter”. In cross-examination she agreed that Mr Murphy had not suggested that she add anything to or take anything out of her original statement. Ms Martin stated that he had made implied suggestions for the change of her statement. I do not accept that was the case because the new assertions of harassment are quite incongruous with her original statement that the incident was “humorous” and “playful”. The new assertions may certainly be influenced by the fact that Ms Martin had discussions with the applicant after he made his claim for compensation. That initial draft is not in evidence and Ms Martin does not have a copy. It was quite fairly put to Ms Martin that her further statement deviated from her original statement which contained words such as “humorous” and “playful”; instead the further statement referred to her having “looked alarmingly around” and referred to heated arguments and harassment. Ms Martin was not able to say what was said in such arguments, only that it “might have been that Andrew was threatening Frank”. I appreciate that Ms Martin wished to support her relative, but I cannot conclude that she had heard a threat in these circumstances.
I consider that Mr Flockhart was tackled with some force because he was injured, and it is quite probable that Mr Flockhart made certain remarks to the applicant. This is certainly consistent with the applicant informing Mr Murphy on the night of the incident that he had “to prove himself” and remarking that Mr Flockhart had “crossed the line”. I accept that the applicant was correct when he initially reported that the “game went out of hand”. However, the applicant had apologised to Mr Flockhart for the injury.
The tenor of what the applicant said was that after the incident there was some ill feeling and that he was effectively ostracised by some members of the crew. He claimed that some members of the crew would not eat the food that he had prepared, although the applicant was not clear about when this had occurred and was unable to inform the Tribunal of when the claimed events of ostracisation had actually occurred. The applicant was extensively cross-examined about the allegations that he made about being ostracised. The applicant has quite properly conceded that his perception that he was ostracised by crew members was contradicted to some extent by the evidence produced on the day of the hearing which showed that there was limited time that the applicant had spent with the crew members that he had said had ostracised him. This aspect of the evidence of the applicant is another reason why I have concluded that he is not a reliable historian. However, having regard to the evidence of Dr Gray on how the applicant would remember past events I accept that the applicant did not intend to mislead the Tribunal.
I accept that it is entirely plausible that there was some ill feeling between the applicant and Mr Flockhart or his associates after Mr Flockhart was injured. Mr Frost in his statement dated 13 October 2016 had stated that In November 2011 the applicant had told him at a dinner that he was talking of quitting the service or moving to another vessel. However, the month of November 2011 that is mentioned in his statement cannot be when this conversation took place. The incident happened in October 2011 and Mr Frost in his statement indicated that the incident “took place approximately two patrols previously”.
In November 2012 the applicant had indicated to Ms Kenneally that he did not want to be on a vessel with Mr Flockhart and he was then assigned to another vessel. Ms Kenneally made a file note on 4 July 2013 in which she indicated that the applicant “was very happy” with his new posting.
The applicant was given an opportunity to put forward his allegations that after the incident in October 2011 he was ostracised by some members of the crew. On 7 November 2012 the applicant had a meeting with Ms Kenneally in Cairns when he was advised that the allegation could not be investigated unless he put in a written complaint. A number of documents which are in evidence refer to this meeting.[67] The applicant is prepared to accept that he was told this by Ms Kenneally but because of his emotional state he did not pass the message on to his wife. His wife has given unchallenged evidence that she continued to ask the various officers about what was going on and was left with the impression that something was being done. However, there is documentary evidence before me that Ms Kenneally advised his wife by email on 3 April 2014[68] and by telephone on 9 September 2014[69] of the necessity for the applicant to make a written complaint before an investigation can be initiated. No investigation into these allegations was held as the applicant did not make a written complaint. Guideline 6.1 of the Customs and Border Protection Service ‘Ethics and Standards of Conduct – March 2009’ policy document provides that an Internal Affairs Unit has been established to investigate allegations of all serious complaints and allegations against employees. [70]
[67] T-docs, Exhibit A, folios 13, 37, 63, 81 and 82.
[68] T-Docs, Exhibit A, folio 84.
[69] Correspondence from the Australian Government Solicitor dated 6 August 2016, attachment ‘R’.
[70] Correspondence from the Australian Government Solicitor dated 6 August 2016, attachment ‘N’.
I have given careful consideration to the assertions made by the applicant that Mr Flockhart inserted his wet fingers in the ears of the applicant or called him names such as a “poofter”. The applicant made no such assertions in the letter which was provided on 3 November 2011. The first documentary record where such an allegation is recorded appears to be in the document that the applicant prepared in about June 2015. The next documentary record where such an allegation is recorded appears to be in the report of Dr Gray, who made his report on 17 July 2015 after having interviewed the applicant on 7 July 2015. In his report, Dr Gray remarked:
“Mr Stephen said that Officer Flockhart wet his fingers and put them into his ear adding they were intoxicated”.
It is fair to read the reference to “they” in that record of Dr Gray as effectively constituting an admission by the applicant that he himself was intoxicated, as well as an allegation by the applicant that Mr Flockhart was intoxicated. The statement in the documentary record that the applicant was intoxicated is certainly not consistent with the evidence that the applicant gave before the Tribunal when he remarked: “I didn’t drink that night”. In a report completed on 3 November 2011, some days after the incident on 30 October 2011, Mr Murphy reported that he understood that the applicant had not consumed any alcohol on the evening of the incident. I do not consider this was the case and as such, in these circumstances, I do not accept the account of the applicant that he did not drink on the evening of the incident.
I do not consider that there is any cogent evidence to substantiate the assertions made by the applicant that Mr Flockhart inserted his wet fingers in the ears of the applicant or called him names such as a “poofter”, or that Mr Flockhart kicked the applicant. However, in fairness to the applicant I should acknowledge that his recollection of the evening of the incident in 2011 may be affected by his medical condition. I have come to this conclusion having regard to the observations made by Dr Gray in relation to the applicant becoming more and more focused on what happened on the evening of the incident. Dr Gray remarked that his recollection to some extent is “influenced by how we’re feeling in the present and sometimes we will again unconsciously usually, modify our memory of what happened”. Having regard to these remarks of Dr Gray, and the fact that the applicant was intoxicated, I have concluded that the oral evidence of the applicant cannot be relied upon as being an accurate account of what occurred on the evening of the incident.

I should also note that when the applicant and his wife spoke to Ms Kenneally in 2012 and in 2014 there were no allegations made to Ms Kenneally about a crew member having inserted his wet fingers into the ears of the applicant or referring to him as a “poofter”. Such allegations are more serious than the applicant being ostracised. In my assessment of the facts I do not accept that a crew member had inserted his wet fingers into the ears of the applicant and referred to him as a “poofter”. The applicant did not make any such allegations to Mr Murphy on the evening of the incident. I accept that on that evening the applicant stated that the crew member addressed him as “Mr P” (the applicant had later explained that this was a reference to his name) and that he addressed that crew member as “Mr A”. He did not then state that he was called a “poofter”. It is implausible that after the incident the applicant made a gift of crayfish to a crew member who had inserted his wet fingers into the ears of the applicant and referred to him as a “poofter”.
In the hearing the applicant was asked if his statement to Dr Gray was the first time that he had told anyone, other than his wife, that Mr Flockhart wet his index fingers and put them in his ears; he stated that he had been talking to Mr Frost about it. While the applicant could not remember when he told Mr Frost, he thought that it was one patrol after the incident which would have been the November/December patrol; however Mr Frost made no reference to this conversation in his statement. I have therefore come to the conclusion that no such conversation with Mr Frost occurred on a patrol and the recollection of the applicant is not accurate.
In his statement dated 5 September 2015, the applicant made reference to his assertion that Mr Flockhart placed his wet fingers in his ears. He remarked:
I believe that Officer Flockhart deliberately wet his two index fingers and placed them in both my ears.
In cross-examination the applicant was asked why he said “I believe he did that”, instead of that is what he did. The applicant stated that was “how I put my sentence”. However, this expression is not a categorical allegation that Mr Flockhart had committed such an act, apart from the admission of the applicant that he was intoxicated on that occasion. The absence of such a categorical allegation does not convince me that the incident occurred as alleged by the applicant.
One witness gave evidence that he did not hear that the applicant was subject to harassment during that car trip back to the boat. Mr Thurtell remarked that “the only recollection I have of that car trip on the way back is a little bit of banter going on about the difference between AFL and NRL codes and, from my memory, it was done in a very light-hearted and jovial manner”. During cross-examination he was not challenged on his account and it was not then put to him that the applicant was subject to harassment. I rely upon the evidence of Mr Thurtell who gave unchallenged evidence that there was a jovial banter in the car. Accordingly, I find that there was no harassment of the applicant in the car. There is also no explanation of the assertion of the applicant in giving evidence that “black magic” had occurred on the evening of the incident.
There is no cogent evidence that the incident on 30 October 2011 or the meeting that the applicant had on 2 December 2011 with Mr Murphy to remind the applicant about the code of conduct had caused the applicant to have a mental condition.
The applicant had been regularly treated by Dr Watson since June 2010. The first indication that Dr Watson had about the applicant having concerns about his mental health was when the applicant asked Dr Watson to complete a compensation claim form on 21 May 2015.
I do not accept the assertions of the applicant and his wife that the applicant told Dr Matic and Dr Watson about his psychiatric condition and sought treatment for the condition before his attendance on 21 May 2015. My reason for not accepting these assertions is because this contention is inconsistent with the statement of the applicant in his claim form where he stated that it was on 21 May 2015 when he first sought medical treatment for the condition from Dr Watson.
I find that when the applicant attended the practice on 21 May 2015 that was when his general practitioner was first notified of his psychiatric condition. On 19 August 2015, Dr Watson advised Dr Curtis that the applicant was attending counselling from a clinical psychologist but the applicant declined to have further treatment.[71] It is somewhat concerning that there is no reason why the applicant had declined further treatment for his condition, despite his assertion that he wanted to find a “cure” for his condition from Dr Watson.
[71] Exhibit P, Copy of summons documents from Nichopperen Health Services Ltd
I consider that before 21 May 2015 Dr Watson had no indication of the applicant having concerns about his mental health. Dr Watson stated that he does not recall the applicant or his wife having raised such concerns before 21 May 2015; the applicant did not challenge this statement of Dr Watson.
In evidence there were a number of comprehensive health assessments that were previously made in the practice with general practitioners. On 6 January 2012 Dr Matic had made a note of the applicant having “Nil mood issues”. In giving evidence Dr Watson confirmed that on 22 March 2013 he made a clinical note that records: “Mood assessment: happy”. There is no cogent evidence that the applicant was suffering from a mental condition before he attended Dr Watson on 21 May 2015. I have mentioned that the applicant in his claim form indicates that it was only on that date when he sought medical treatment for his condition.
The records of the general practice that are in evidence are a comprehensive account of the ailments that were brought to the attention of the general practitioners of the practice. There is no indication in those records that the applicant had notified his general practitioner of a mental condition before 21 May 2015. The mood assessments that were taken on 6 January 2012 and 22 March 2013 indicate that the applicant did not have a mental health condition on those dates.
Dr Gray saw the applicant for one consultation in July 2015 and also had the benefit of reading witness statements. Dr Gray fairly considered a number of possible scenarios which were put to him. Dr Gray quite properly confirmed that it is difficult in medico-legal cases for a person who is not the treating clinician to form a view on whether the stressor happened in the way that is described in the material.
I have considered whether the meeting that the applicant had with his commanding officer when he was reminded about the code of conduct significantly contributed to his mental health condition, as the applicant may have feared the loss of his career. The applicant himself stated that “he didn’t upset me with that code of conduct”. Having regard to this evidence I do not consider that the meeting can be a stressor. However, Dr Gray had carefully considered whether the fear of loss of career was a contributing factor in the development of the mental health condition.
In giving his evidence Dr Gray explained that by the time the mixed anxiety and depressive disorder developed the fear of loss of career was not a significant factor in the development of that disorder. Dr Gray stated that the issue with respect to the loss of career is very much to do with the incident on the wharf causing Mr Flockhart to say something to him. Dr Gray considered that the incident with the commanding officer was quite significant early on within a month or a couple of months but thereafter it really lost its significance and intensity as a stressor for the applicant because it had been dealt with and clearly he had not lost his job.
I accept the assessment of Dr Gray that the fear of loss of his job was not a stressor for the development of the mental condition of the applicant. This assessment accords with the mood assessments on 6 January 2012 and 22 March 2013 which did not detect any mood change. The applicant did not challenge this assessment of Dr Gray.
I do not accept the assertions of the applicant that he was suffering from anxiety depressive symptoms while he was employed. The comments of Mr Frost, including that the applicant was “sad”, are not of itself indicative that the applicant then had a mental health condition.
After the applicant took a voluntary redundancy in late 2013 the applicant, to his credit, undertook voluntary work. However, his wife indicated that it was after his voluntary redundancy that the applicant began to ruminate about past events. She remarked:
“I have often found that Frank has got up in the middle of the night and is sitting on the verandah ruminating on his treatment after the incident. Over time Frank became very anxious and irritable. Even minor things such as the children making noise caused him to be worried. Frank told me that when he went out to places such as shopping centres and on social occasions that he was being judged.”
The most probable time when the applicant began to develop a mental condition would appear to be sometime after he accepted the voluntary redundancy. This is the conclusion of Dr Watson, who gave evidence that there were a number of factors which may have caused the mental condition of the applicant. Dr Watson stated that this “holistic issue” concerned the loss of work, painful feet, poor diabetes control and his nerve function. This assessment of Dr Watson (as well as his statement that 21 May 2015 was the first occasion on which the applicant had notified him of his mental health condition) was not challenged by the applicant, who elected not to cross-examine Dr Watson. Dr Watson, as the general practitioner, did not give any indication that the mental health condition arose before the applicant accepted a voluntary redundancy.
Dr Gray has quite properly explained that there is a difficulty in being certain about when the adjustment disorder arose. Dr Gray remarked that he saw the applicant a number of years after the incident on the wharf, and did not have the opportunity to interview the applicant at that time. Dr Gray has commented upon the circumstances of the applicant after he accepted the voluntary redundancy:
“I do think that the history points to, over time Mr Stephen becoming more and more focused on what happened in the - you know, on the wharf … I’d stop short of using the word “fixated” but I think he was … ruminating, which is, sort of, going over and over and over in his mind, these matters. … Yes, there’s no doubt that, in my opinion, that - and that mental state over time can influence or even alter recollections”.
This assessment of Dr Gray accords with the assessment of Dr Watson, who listed the loss of work as the prime factor which contributed to the mental health state of the applicant.
While I do not consider that the mental health condition of the applicant was caused by his meeting with Mr Murphy on 2 December 2011, I should state my conclusions as to whether this meeting constituted reasonable administrative action. The definition of “reasonable administrative action” in section 5A(2)(b) of the Act is taken to include reasonable counselling action (whether formal or informal) taken in respect of the employee's employment. I consider that the meeting that the applicant had with Mr Murphy on 2 December 2011 was reasonable counselling action to ensure that the applicant was reminded of the terms of the code of conduct. There was no necessity for any notice of the meeting to be given to the applicant as he was not subject to any disciplinary action following the meeting and the meeting would appear to be an informal meeting. Having regard to the fact that the applicant was not subject to any disciplinary action, I consider that the meeting was taken in a reasonable manner.
There is no cogent evidence that the mental health condition of the applicant was caused by his employment.
DECISION
I affirm the decision under review.

I certify that the preceding 337 (three hundred and thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate
Dated: 28 February 2018

Dates of hearing: 7 – 9 November 2016

Date final submissions received: 5 January 2017

Counsel for the Applicant: Mr Chris Ryall

Solicitors for the Applicant Ascione & Associates

Counsel for the Respondent: Mr Andrew Schatz

Solicitors for the Respondent: Australian Government Solicitor

[2018] AATA 344

28 February 2018

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Statutory Construction

Appeal

Procedural Fairness

Dates of hearing:	7 – 9 November 2016
Date final submissions received:	5 January 2017
Counsel for the Applicant:	Mr Chris Ryall
Solicitors for the Applicant	Ascione & Associates
Counsel for the Respondent:	Mr Andrew Schatz
Solicitors for the Respondent:	Australian Government Solicitor