Taylor and Military Rehabilitation and Compensation Commission
[2005] AATA 207
•11 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 207
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2001/42
GENERAL ADMINISTRATIVE DIVISION )
Re EDWARD THOMAS TAYLOR Applicant
And
MILITARY REHABILITATION & COMPENSATION COMMISSION
Respondent
DECISION
Tribunal The Hon R J Groom (Deputy President) Date11 March 2005
PlaceHobart
Decision
The decision under review is set aside and the matter remitted to the respondent with the following directions:
(a) The respondent is liable to pay compensation to the applicant in accordance with the provisions of the Act in respect to the disease PTSD which was contributed to in a material degree by the applicant’s employment with the Commonwealth, and is an “injury” within the meaning of the Act.
(b) The applicant is incapacitated for work and suffered a permanent impairment as a result of the said injury and has been so incapacitated and impaired since 31 July 1996.
(c) The amount of compensation payable to the applicant is to be assessed.
[Sgd R J Groom]
Deputy President
CATCHWORDS
Compensation - army recruit - claims of “bastardisation” during training – facts of incident disputed – claim of PTSD - conflicting medical evidence - "injury" - "disease" – “ailment” incapacity for work – permanent impairment - PTSD contributed to in a material degree by employment - decision under review set aside
Safety Rehabilitation & Compensation Act 1988 ss4(1),4(9), 14(1), 67(9)
Jones v Dunkel (1959) 101 CLR 298
Re Bessey and Australian Post Corporation (2000) 60 ALD 529 at 537Ramsey v Watson (1961) 108 CLR 642
Favell Mort Ltd v Murray (1976) 133 CLR 540
O’Neil v Commonwealth Banking Corporation (1987) 75 ALR 154
Treleor v Australian Telecommunications Commission (1990) 26 FCR 31
Migg v Wormald Bros. Industries Ltd (1972), 2 NSWLR 29 at 44:REASONS FOR DECISION
The Hon R J Groom (Deputy President) 1. The applicant then aged 18 years enlisted as a recruit in the Australian Army on 13 August 1991 and continued to be employed in the army until 26 June 1992 when he was discharged at his own request with the rank of Gunner.
2. On 8 March 2001 a review officer of the Military Compensation & Review Service of the Commonwealth Department of Veterans’ Affairs affirmed an earlier departmental determination of 4 December 2000 denying liability in respect of the applicant’s claimed condition of “anxiety/depression as related to PTSD”. On 21 March 2001 the applicant sought a review of the decision of 8 March 2001.
3. The hearing of this review application was held in Hobart. It commenced on 15 November 2004 and extended over 8 sitting days concluding on 14 December 2004. Mr Roland Browne appeared for the applicant and Mr Brian Morgan for the respondent. Eleven witnesses gave evidence, including the applicant, psychiatrist Dr Robert Burgess (by telephone), psychologist Mr Simon Webb, the applicant’s father Mr Warren Taylor, Sergeant Peter Lee, Mr Steven Flory (by videolink), Constable Steven Wicks (by videolink), the applicant’s mother Mrs Verushka Taylor, Warrant Officer James Boatwright (by videolink), psychologist Mrs Rosemary Laver and psychiatrist Dr Ian Sale. The “T Documents” lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and numerous other documentary exhibits were tendered and received into evidence.
4. During his period of employment with the army the applicant was an “employee” within the provisions of the Safety Rehabilitation & Compensation Act 1988 (“the Act”). Under the Act the employer is liable to pay compensation in respect of any “injury” suffered by an employee if the injury results in “…. death, incapacity for work or impairment …..” (see s14(1) of the Act).
5. In s4(1) of the Act the word “injury” is defined as follows:
"'injury' means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment".
6. In the same sub-section the word “disease” is defined as follows:
"'disease' means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation".
Also in the same subsection “ailment” is defined as follows:
"'ailment' means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)".
7. In the application Comcare was originally named as the respondent in the proceedings however consequent upon the Military Rehabilitation & Compensation Act 2004 coming into effect on 1 July 2004 the respondent became the Military Rehabilitation and Compensation Commission, although liability is still assessed under the Act.
Background Facts
8. I find the following background facts:
(a)The applicant was born on 10 March 1973. He is now a single man aged 31 years. He is an only child. His father is employed by the Australian Taxation Office and his mother, in the past, has worked in retail and as a legal secretary. He and his parents have lived in New South Wales, Western Australia and since 1989 in Tasmania.
(b)The applicant attended various schools including the Grose View Primary School in New South Wales, West Balcatta Primary School in Western Australia, Parramatta High School in New South Wales and then Elizabeth College in Hobart, Tasmania which he attended in 1989 and 1990 before joining the army in August 1991.
(c)The applicant desired to join the army and did so on 13 August 1991 when he was 18 years of age. On 14 August 1991 the applicant travelled to the Australian Army Base at Kapooka where he undertook his initial 13 week training.
(d)It was during this initial training that the applicant alleges he was subjected to assaults, threats, abuse and intimidation and as a result now suffers from PTSD.
(e)After his initial training the applicant was posted to the School of Artillery and whilst a member of that unit undertook a basic drivers training course. He had not driven a car prior to joining the army and had considerable difficulty with both the theoretical and practical phases of that course. He was withdrawn from the course and so did not qualify as a driver.
(f)Throughout most of his training and work in the army the applicant experienced trouble with his feet. He had flat feet and also suffered from bilateral plantar fasciitis. These conditions made it difficult for him to take part in running or prolonged marching. This severely restricted the type of duties he could perform in the army. He was offered a clerical course but this was not the type of work he wished to pursue. The applicant was discharged at the rank of Gunner on 26 June 1992 “having requested his own discharge under 20 years”. He had been employed in the army for less than 11 months.
(g)Following his discharge from the army and return to Tasmania the applicant re-enrolled in July 1992 at Elizabeth College which he attended for a short period. After that he worked for periods at various businesses including La Cuisine in 1993, Sheridan Textiles (1993-1996), Croissant Express in Perth Western Australia (1998), Coverall Security (2000) and Searson Workforce (2000).
(h)In addition to again attending Elizabeth College for a period after leaving the army the applicant also attempted various courses of study and training including a pre-vocational building and training course at TAFE, a 3 day forklift driving course, computer science at the University of Tasmania, a pre-employment electro technology course at TAFE and a TAFE course in residential housing and design. The evidence is that of those courses the only ones completed were the forklift driving and electro technology courses.
(i)Some time after leaving the army the applicant’s health and behaviour began to deteriorate. His parents were concerned and arranged for him to see the Vietnam Veterans’ Counselling Service (“VVCS”). He first saw a counsellor of that service, Mr Keith Meredith, on 9 October 1995. At some point and possibly about that time he also saw a psychiatrist Dr Burges-Watson. On 31 July 1996 he had an appointment and saw Dr McCafferty also a psychiatrist. In January 1999 he was first seen by Mr Simon Webb a psychologist following a reference from the VVCS. He has since attended Mr Webb on numerous occasions and has also been seen on many occasions by Mrs Rosemary Laver a psychologist and Dr R J Burgess a psychiatrist. Mr Webb, Mrs Laver and Dr Burgess have all provided written reports that are in evidence before the Tribunal and have also given oral evidence. They are all of the opinion that the applicant is suffering from PTSD as a result of his treatment during his initial army training at Kapooka.
(j)Dr Ian Sale, psychiatrist, was engaged by the respondent to provide an opinion on the applicant’s condition. He interviewed him on 3 November 2000 and provided a written report dated 6 November 2000 which is also an exhibit in this application. Dr Sale concluded in that report that the applicant was indeed suffering from PTSD as a consequence of being “…. subject to bastardisation”. However in a later report dated 20 November 2003 Dr Sale withdrew his earlier diagnosis of PTSD for reasons explained in that report.
(k)The applicant continues to have serious health problems and to exhibit abnormal behaviour. He is presently residing in Hobart, is unemployed and is receiving a disability pension.
The Issues
9. The principal issues in this application are:
(a)Did the incidents which the applicant alleges occurred during his initial training at Kapooka actually occur as alleged or at all?
(b)Is the applicant suffering from PTSD or, as argued by the respondent, from a psychosis or severe personality disorder not related to his army training at Kapooka.
(c)If he is suffering PTSD was it caused by the alleged incidents or was it otherwise contributed to in a material degree by the applicant’s employment in the army.
10. The respondent disputes the incidents as alleged by the applicant and also the diagnosis of PTSD.
11. The Tribunal must therefore determine disputed issues of fact and consider the conflicting medical opinions before making its decision.
12. I will deal first with each of the alleged incidents at Kapooka and will then consider the various medical opinions.
The Incidents at Kapooka
13. The applicant alleges that he was subjected to assaults, threats, abuse and intimidation during his initial 13 week training period at Kapooka. He relies in particular on four specific alleged incidents.
I briefly describe these incidents as follows:
(a)the firing of rifles in the barracks to wake recruits on “day one week one” of their training
(b) an incident which occurred during the night when a “swagger stick” was pushed up the nose of the applicant
(c) being terrorised and threatened by Bombardier Johnston after the applicant and other recruits had donated blood.
(d) an incident in which the applicant was assaulted by an instructor at the swimming pool at Kapooka.
14. As the Tribunal is required to make findings concerning disputed facts it must therefore consider the credibility of the various witnesses. Central to most of the factual issues is the account provided by the applicant himself. An assessment of his credibility is essential to this application. I have, of course, had the opportunity to observe the applicant’s demeanour in the witness box and the way he has answered questions. The applicant is suffering from some form of mental disorder which at times causes him to have lapses of memory, however I generally found him to be a witness who was endeavouring to be truthful and tried, as best he could, to give an accurate account of events as he saw them. His account of the central facts of each of the incidents I find to be generally reliable. It is significant that there has been a good deal of consistency over time in the accounts provided by the applicant to doctors and psychologists and in his evidence under oath.
The Firing of Rifles in the Barracks
15. The following account of this incident is set out in paragraphs 7, 8 and 12 of the Applicant’s Proof of Evidence dated 22 May 2002 (Exhibit A1):
“7. On the 19 August, I had been at Kapooka for 5 days or so. At about 5 minutes to 6, Reveille had not yet sounded, and I was asleep. I was awakened by the sound of semi-automatic rifle fire in our barracks. I had heard a semi-automatic rifle before, but it was a .22 rifle. The rifles that were being fired in our barracks were, I expect, army issue SLR 7.62 mm semi-automatic rifles. There were 3 or 4 guns being fired simultaneously. I didn’t know what it was at first, but I shot up like a rocket in my bed in a complete state of shock. It was pitch black and all I could see were flashes of light from the muzzles, accompanied by very loud and deafening sounds. The echo was tremendous. Those that were firing their rifles were yelling out “Get the fuck up…”. It was madness and chaos. Eventually the lights came on, but there was smoke everywhere. It was not possible to see much because of the smoke. The smell of cordite was very strong. After the lights came on, a very deep voice called out “Hallway 14!” I was still in bed and in a state of shock when a corporal dragged me out of bed and into the hallway by my neck.
8. The only corporal that I remember on that day was Corporal Florey who was standing at the end of the hallway. He was saying to us “You cunts, welcome to 13 weeks of absolute hell! We are going to fuck you up.
12. I do not know which corporal dragged me out of bed on this morning, except I know it was not Corporal Florey because he was in the hallway shouting. I was absolutely terrified by this incident. I will never forget it.”
16. In oral evidence the applicant said that he saw flashes from the muzzles of the rifles. He went on to say :
“There was just like chaotic sounds going, you know, corporals screaming, other recruits you know screaming back sort of thing. I was pretty much you know thinking to myself what the hell is going on, but like you know just sitting in bed because like you know it’s pretty much like sort of – I wouldn’t say like you know a full on state of shock, but you know wondering what the hell is going on in that sort of shock, you know. Then – like they were running past the rooms first of all firing and then they actually entered the rooms and started firing in to the rooms”. (Transcript p.90)
He said he could smell cordite and also that there was no carpet on the floor that the covering was something like “vinyl”. (Transcript p.88)
17. Sergeant Peter Lee, who at the time was a corporal and PT instructor at Kapooka, said that “the weapons were fired in the hallway of the platoon building” (Transcript page 410). He disputed that rifles were fired in the rooms. He said “I know that at the time that would not have been permitted. That is an unsafe practice”. Under cross-examination he agreed that a corporal could be walking down the corridor firing the rifle.
18. Mr Stephen Flory who at the relevant time had been a corporal at Kapooka and a recruit instructor said in his Proof of Evidence dated 8 January 2003 (Exhibit R5) that the rifles would have been fired “… in the foyer only”, the applicant would “not have been physically dragged out of bed ….”. He admitted that he shouted at the top of his voice “You cunts welcome to 13 weeks of absolute hell”. (Transcript p.457)
19. Constable Stephen Wicks who I found to be a credible and persuasive witness was a fellow recruit at Kapooka with the applicant. He said in oral evidence that there could have been three or four guns rifles fired off and agreed that perhaps six or eight rounds were fired from each but he was not sure. He recalls there was smoke in the hallway and the smell of cordite. He said after the rifles were fired the recruits were in a state of “shock, scared, confused”. He said those who were slow to get out of bed may have been pulled out of bed by fellow recruits.
20. Warrant Officer James Boatwright, who again was a corporal and recruit instructor at Kapooka when the applicant did his training said in evidence (transcript page 527) the rifles were fired but “… the worst case would’ve been a muzzle may have gone into the hallway”, he added “the acoustics in the hallway is such that the reverberating noise would go up and down very loudly ….” He said the applicant “… would have seen the flashes but not the muzzle …”. He added that a maximum of 20 rounds would have been fired from each of the two rifles at either end of the hallway. He agreed that the rifle fire “… scared a few …” but denied it “terrified” any of the recruits.
Finding
21. I find that at least two SLR rifles were fired in the barracks on day one week one of training at Kapooka using as many as 20 blank rounds from each rifle. The applicant had no warning that the firing of rifles would occur. It is significant that at the time the rifles were fired the applicant was sound asleep in his bunk and it was dark in his room. Shortly after the firing he was dragged out of his bed by an unknown person who was probably a fellow recruit. The rifles were fired at each end of the building in the foyer or a short distance into the hallway but were not pointed directly at the applicant nor actually fired in his room. He was distressed and in a state of confusion because of the extraordinary loud noise of the rifle fire and the flashes of light from the muzzles which he saw from his bed. There was some smoke in the hallway and the smell of cordite in the hallway and rooms. I find that the applicant was shocked and terrified by what took place at that time.
The Swagger Stick Incident
22. The applicant described this incident in paragraph 22 of his Proof of Evidence (Exhibit A1) as follows:
“About 5 or 6 weeks into training, I was asleep in my bed. I was woken up by one of the corporals who was on guard duty. He had a swagger stick and he stuck that stick up my nose and shone a torch into my face I was unable to see anything. He asked me if I was awake. I answered “yes”. He responded by screaming at me, saying “don’t answer me, recruit!” his response terrified me. I do not know who the corporal was. Because the torch was shining into my face, I was unable to see him.”
23. The applicant said in oral evidence that the swagger stick, which has a bullet casing at one end and is quite sharp, was pushed up his nose. He said it was “… caught up the back channel…” making him lift up his head. (Transcript p.67) He said he had been in a deep sleep. The applicant said he was shocked and felt scared. He added:
“No offence but this goes back to everything, scared for my life. This was only three weeks after the Johnston incident, three or four years after the Johnston incident. You know, you’re walking around jumping.” (Transcript p.67)
24. Sergeant Lee agreed that it was the practice in 1991 for the corporals to go through the barracks at night with torches to check that everyone was in their bunks. He said they used “… large dolphin-type torches you can buy today, I think” (Transcript page 429). He agreed that the torch could dazzle you and make it difficult to see.
25. Mr Flory agreed that the corporals who would check the barracks at night carried a flashlight and torch with them. He stated that the corporals on duty checked the barracks alone and also that the torch was not shone directly on the recruits but “… underneath their bed… the light would then reflect up and you could see that someone was in the bed”. (Transcript p.464)
26. Constable Wicks said in oral evidence that the corporals walked through the barracks every night carrying a torch and swagger stick. He said they did not enter the rooms but stood “… at the door with the torch checking to make sure that there were actually four people in each room”. (Transcript p.501)
Finding
27. Bearing in mind the culture that existed at the relevant time at Kapooka and the manner in which recruits were constantly intimidated I am satisfied on the evidence that the incident alleged by the applicant did occur. I do not accept that the incident was invented by the applicant. There were no independent witnesses to the event but it could not reasonably be expected that there would be witnesses as the event occurred at night in the sleeping quarters at the barracks. All the witnesses agree that Corporals did walk through the barracks at night with a torch and swagger stick. It is reasonable to infer from all of the evidence that a corporal would in fact enter a room if he felt there was a need to do so. The applicant said he was awake at the time and I find that this was the reason why the corporal felt it necessary to enter the room on the night in question. The applicant’s version is entirely feasible and in keeping with the climate at Kapooka and the intimidating approach adopted by some of the corporals. I find also that the applicant felt upset and terrified by this incident.
Bombardier Johnston Incident
28. The applicant gave the following version of this incident (see paragraphs 13 to 18 of Exhibit A1):
“Bombardier Johnston (or Corporal Johnston) was present from the beginning of my training. He was mean, seemed selfish and was always unhappy. As far as I could see, he treated all recruits with contempt. My relationship with Johnston was one of intimidation of me by him. He threatened and abused us virtually all the time. I was very scared of him from the beginning and I still feel very scared of him today.
One particular incident involving Corporal Johnston was in my third week there, in early September. We were asked who would like to give blood to the Red Cross. I volunteered. Bombardier Johnston drove us in a small bus. We donated blood and got back on the bus. As we climbed aboard the bus, Johnston screamed out “Get the fuck in! Sit down!” We were not permitted to speak. He was behaving oddly, even for Bombardier Johnston.
We arrived back at 14 Bravo Building, Kapooka, and he marched us through the front doors. Normally we were not permitted to use these doors. We were marched into a room. I believe that Johnston shut the door, because I remember hearing a bang. As soon as I had heard the bang, he just began screaming. He was foaming at the mouth and carrying on. I was petrified. Johnston walked out of the room and returned with something in his hand. I believe it was a swagger stick or a bayonet. A swagger stick is a stick with the top half of a 50 calibre round of ammunition glued on the top of the stick and the bottom of the round glued on the bottom. He jabbed me in the chest with the stick or bayonet and interrogated me. He said “Which one of you was talking to the nurse?” Recruit Wicks put up his hand in reply indicating it was him. Johnson went crazy at Wicks. He screamed and ranted. He came up to each of us and he said “I can’t stand all you fucks! You recruits are all pieces of shit! I will come and kill you all.” He then walked out of the room without dismissing us. I was absolutely terrified by Johnston’s behaviour.
I was so terrified that night that I went to bed taking my bayonet with me for protection from Johnston. I really thought that he would come after me.
However, that evening (before me), we were told that the recruits who were involved in the incident with Johnson were to report to Sergeant Cook. I did so. Lieutenant Pollock was in the room and we were called in one at a time. I assume that one of the recruits must have reported the incident. Sergeant Cook asked me what happened and I described the incident. He wrote it all down. He asked a few more questions and then asked “Do you feel physically threatened by Bombardier Johnston and threatened in his presence?” I replied. “Yes I do”. The other recruits who were involved in this incident were asked the same question and, I believe, gave the same answer. I understand that the rest of the platoon were also asked.
The following day we were told that Johnston was not allowed to come near us again or near the platoon.”
29. The applicant stated in oral evidence:
“I thought I was going to die” (Transcript p.19)
and later
“As soon as I saw – and to this day I cannot remember what it was – but as soon as I looked down, I just said to myself, oh, that’s it, I’m dead. It was either a swagger stick or a bayonet. I just cannot remember to this day which of the two it was – I would go with swagger stick because I remember he was, like, thrusting it in my throat, so I would say.” (Transcript p.20)
He said it happened on the third floor of the barrack building, which was the top floor of that building.
30. He also stated that virtually the only words that he could remember is
“Taylor I’m going to throw you out the window”. (Transcript p.22)
“Right? --- And that’s when Wicks put his hand up and said – and he’s grabbed me by the – n, no, sorry – that’s when Wicks stepped in and said, “No, it was me.” (Transcript p.22)
He also said:
“I can remember he said to Wicks – and pardon my swearing here again, “You’re a fucking dead man.” (Transcript p.22)
The applicant also stated in oral evidence:
“… I really felt my life was – I thought of – I honestly thought I wasn’t going to leave the room that day, that’s the honest truth.” (Transcript p.25)
The applicant also said in evidence that he broke down after the incident:
“Just uncontrollable sobbing. I was shaking.” (Transcript p.43)
31. Constable Wicks who is presently an officer in the Northern Territory police force and for a time was himself in the military police special investigations branch, confirmed significant elements of the applicant’s account of this incident. He agreed that Johnston was more intense and berated recruits and screamed at them more than the other corporals. (Transcript 487). Constable Wicks also confirmed after that after the recruits had given blood and returned to bus that Johnston was behaving oddly and screamed “Get the fuck in and sit down.” (Transcript p.488) and from that point on the recruits were not allowed to speak.
32. Constable Wicks agreed that after arriving back at Kapooka a group of recruits were marched to their room on the top floor of the barracks and Johnston then slammed the door shut behind them with great force. He said Johnston was “…. yelling and screaming.” He stated that “he had us standing to attention .“ (Transcript p.492) Constable Wicks agreed that Johnston left the room and came back with a swagger stick. He could not dispute that Johnston may have been jabbing another recruit in the chest with a swagger stick, he said “… he didn’t see anything like that … my peripheral vision will only account for the person next to me on either side.” (Transcript p.493)
33. Constable Wicks said he indicated that he was the one who had been speaking to the nurse. Johnston “went off at me” and agreed he was “… yelling and swearing and spitting in your face”. (Transcript p.494)
34. He said that Johnston forced him back to the window and ”shoved” the end of the pace stick up his nose. He confirmed that Johnston threatened to throw him out the window. He also said that he was called into the platoon commander, Lieutenant Pollock’s office. Sergeant Cook was also in the office. He agreed that soon after that Johnston had no further contact with the platoon.
Finding
35. In the Tribunal’s view Constable Wicks’ version of events largely corroborates the applicant’s evidence of the circumstances of the incident. I find Wicks to be a witness of the truth who gave clear and convincing evidence. There is no doubt that an incident occurred on that day in August 1991, after some recruits had donated blood. It is entirely understandable that in the traumatic circumstances Wicks would recall the treatment he personally received, but may not clearly recollect the mistreatment of a fellow recruit. The two accounts in their essence are convincingly consistent. The applicant recognised in his statement that it was Wicks who actually admitted to Johnston that he was the person who had spoken to the nurse, and then was subjected to special treatment from Johnston. If Johnston’s purpose was to find out who spoke to the nurse, it is not surprising that he remonstrated with the applicant as well as Wicks.
36. It appears that Constable Wicks was 23 years of age at the time, and had sufficient mental fortitude to withstand the intimidation and threats, whereas it is obvious that the applicant, then aged 18 years, was more sensitive and vulnerable and was, as he said, “absolutely terrified” by Johnston’s behaviour.
37. The Tribunal is left in no doubt that this incident occurred and that the applicant himself experienced direct threats and abuse as he explained and that he also observed the unreasonable treatment meted out to Constable Wicks.
The Swimming Pool Incident
38. This incident was described by the applicant in paragraph 21 of his proof of evidence (Exhibit A1) as follows:
“In my first 2 weeks, another incident occurred that upset and scared me. Part of our training involved having swimming instruction, where we were required to swim 400 metres with out clothing on, rescue a person from the other side of the pool, and then tread water for 10 minutes. I completed the swimming and the rescue, and while I was treading water, I saw another recruit in difficulties. I thought he was drowning. I went over to assist him. The instructing corporal saw me and called me over by the side of the pool. He appeared livid that I had attempted to rescue the drowning recruit and struck me forcefully in the face with a closed fist. He then told me to return to my position and tread water to make up for lost time. I believe the corporal who did this was Corporal Lee.”
In oral evidence the applicant said that he was struck “just below the eye” and the blow “… a bit of like a bruise, that was about it, yes.” (Transcript p.91)
39. Witness Sergeant Lee was in fact a corporal physical training instructor at Kapooka when the applicant did his 13 week initial training. He was one of the PT instructors who conducted swimming tests at the swimming pool. He said recruits did a basic test in their first week of training. They wore “greens” and would swim 25 metres and tread water for 2 minutes. He stated that 40 recruits would be brought up to the pool area and they would be tested 10 at a time.
40. Sergeant Lee said “all members of staff were at the test”. He explained that this included the platoon commander, platoon sergeant and a corporal for each “section”. He said there could be “… three or four sections … involved.” (Transcript p.409) Sergeant Lee denied striking or punching the applicant.
41. The said the section corporals and the sergeant present had a “rescue pole stick” with them to assist any recruits who were in difficulty.
42. In the course of Sergeant’s Lee’s oral evidence, counsel for the applicant acknowledged that “… my client doesn’t, in fact, identify you as the person who has done that or did that ( i.e. strike the applicant) … “so I will be passing that over”. (Transcript p415-416).
43. It was put to Sergeant Lee in cross-examination that perhaps he was on leave and another PT instructor was involved. He said that if he was absent another PT instructor would take the test, but they would not require the recruits to swim a greater distance. He said “… the protocol for a swim test is a 25 metre test, two minutes treading water.” (Transcript P417). In re-examination he said that he had no reason to believe he was on leave at the time. Documentary evidence was tendered in evidence suggesting that Sergeant Lee was not on leave at the relevant time. (Exhibit R11).
44. Witness Mr Flory said he thought the swim test was “one lap with your uniform on” (Transcript p.470). His recollection was somewhat unclear, but he believed that if a recruit struggled with the test, he may have to do “remedial training” which may have involved treading water for a longer period and during swim training as opposed to the “swim test” recruits may have had to swim a number of laps.
45. Constable Wicks largely confirmed Sergeant Lee’s evidence about the swim test. He said recruits had to “… jump into the water fully clothed and tread water for two minutes and swim one lap of the pool fully clothed.” (Transcript p.479). He said he had never seen a person physically struck by one of the PT instructors.
46. He said that if a recruit did the wrong thing during the swim test “… you’d get – usually reefed …”. He said the “discipline is very tough …”. (Transcript p.506). He said a recruit could be made to run around the tree and back. Constable Wicks also said that swim training was not conducted wearing a uniform but “… was usually done in speedos.” In cross-examination he was adamant that recruits did not have to swim 400 metres fully dressed, nor did they have to tread water for 10 minutes.
Finding
47. Although not as serious as the other events, I do find that an incident did occur at the pool and that the applicant did receive some kind of blow to the face for not following instructions as required. Again, I cannot accept on all of the evidence that this claim by the applicant was a complete invention. I find that incident did not involve Corporal Lee, as acknowledged in evidence by the applicant’s counsel, but that the blow was struck by one of the other corporals or instructing staff present. I find that the applicant’s claim that the distance swum was 400 metres and that recruits had to tread water for 10 minutes to be an inaccurate and arises from some confusion and poor memory of the detail. I accept his evidence that an incident did occur at the pool, that he was struck in the face, but suffered no evident physical injury. I find that he was upset by the incident particularly in the context of other treatment he had received during training.
The Medical Evidence
48. Medical reports and oral evidence were provided by two psychiatrists Dr Robert Burgess and Dr Ian Sale, as well as by clinical psychologist Mrs Rosemary Laver and consultant psychologist Mr Simon Webb. A medical report by consultant psychiatrist, Dr Lawrence McCafferty was also tendered in evidence as well as several documents which are relevant to the applicant’s medical condition including, inter alia, notes of interviews by the VVCS, a typed summary of those notes, a Quickview Social History, a Micro Test Q of the Quickview Social History, the Mississippi PTSD Scale, the MMPI-2 interpretative report and relevance sections of DSM-1V published by the Medical Psychiatric Association to assist practitioners in the diagnosis of PTSD.
49. Dr Ian Sale, a very experienced psychiatrist, was initially engaged by the Commonwealth Department of Veterans’ Affairs to assess the applicant’s medical condition and to then provide a report. He saw the applicant on only one occasion, namely 3 November 2000, and subsequently provided a report dated 6 November 2000. Based on the information then provided to Dr Sale and the interview with the applicant, Dr Sale concluded “…. This man suffers a post-traumatic stress disorder as a consequence of being subjected to `bastardisation’…”.
50. Dr Sale’s initial diagnosis was consistent with the opinions of the applicant’s treating psychiatrist, Dr Burgess who has had 21 consultations with the applicant with each consultation being between “45 and 50 minutes duration” (Transcript p.219) and he provided an initial written report dated 28 October 2004 concluding that “I believe that Edward Taylor is suffering from post-traumatic stress disorder as a consequence of the bullying and bastardisation to which he was subjected at Kapooka.”
51. Dr Sale’s initial report was also basically consistent with the opinions of the two psychologists who have had the opportunity to interview and observe the applicant on numerous occasions over an extended period of time. Mr. Webb has seen the applicant on a regular basis since January 1999 except for a period of 17 months when Mrs Laver saw him on 16 occasions. Both psychologists have extensive experience in treating trauma related conditions, including PTSD, and both expressed the opinion that the applicant was suffering from PTSD as a result of his treatment in the army at Kapooka.
52. Dr Sale, in his critical second report dated 20 November 2003, after considering additional information, withdrew his earlier diagnosis and stated that:
“I believe that I need to withdraw my earlier diagnosis of Post-traumatic Stress Disorder. I do this on the basis that
· There is doubt as to whether the incidents alleged occurred.
· Symptomatology has been reported that suggests another type of clinical condition.
The conditions under consideration such as incipient psychotic illness or severe personality disorder are unlikely to be related to what was a rather limited period of military service.”
53. As the other three medical experts Dr Burgess, Mr Webb and Mrs Laver maintain their opinion that the applicant is suffering PTSD as a result of his military service, it is necessary for the Tribunal to carefully consider the merits of the conflicting expert opinions.
54. I indicate that I do not draw any adverse inference from the failure by the applicant to call psychiatrist Dr Burges-Watson. The evidence suggests that Dr Burges-Watson saw the applicant on only one occasion. There was substantial other medical evidence concerning the applicant’s mental health. I do not see this particular matter as one readily attracting the rule in Jones v Dunkel bearing in mind, of course, that the question as to when it is appropriate to apply this rule has to be considered in light of the reality that proceedings of the Administrative Appeals Tribunal are essentially inquisitorial in nature, and in special circumstances the Tribunal itself can summons a witness to attend before it. See Jones v Dunkel (1959) 101 CLR 298 and Re Bessey v Australian Post Corporation (2000) 60 ALD 529 at 537.
55. It was generally agreed by the expert medical witnesses that DSM-1V published by the American Psychiatric Association is the most commonly used diagnostic manual for diagnosing PTSD. Dr Sale said it was a “useful document” but added that he thought “… a bit of clinical experience and judgment needs to be used in utilising DSM-IV”. Dr Burgess said most psychiatrists use DSM-IV. Mrs Laver said she supported the accuracy of the diagnostic features set our in DSM-IV. Mr Webb also said DSM-IV was regularly used by psychologists in the assessment of post-traumatic stress disorder. Relevant sections of DSM-IV were tendered in evidence as Exhibit A14
56. The medical experts have provided to the Tribunal, in various medical reports and other oral evidence, details of various health problems and symptoms experienced by the applicant. Much of that information was provided to them by the applicant himself and, of course, he explained in oral evidence as well as in his proof of evidence the problems he says he was experiencing. Some of those problems included difficulty in sleeping, nightmares, irritability, angry outbursts, intrusive recollections of the traumas experienced, feelings of detachment from others, difficulty in concentrating, poor memory and recall, thoughts of suicidal and homicidal ideation, thoughts of revenge and going berserk at others.
57. In addition there were symptoms and problems referred to in the VVSC notes, the Quickview Social History report and elsewhere which were the subject of a great deal of questioning and submissions during the course of the hearing. These included auditory hallucinations, persecutory beliefs, feelings of being controlled, thought insertion, visual hallucinations, unwanted repetitive thoughts, paranoia, a belief that he was being followed, voices in the head, switches of religious affiliation and also the suggestion of having special mystical powers.
58. There was also evidence that the applicant wanted to rejoin the army or another type military force and had in fact made regular applications to achieve that.
As well, the applicant had an ongoing interest in possessing various types of weapons and had in his possession at various times, a pistol, a Ghurkha knife, a bow and arrow, a Fijian spear and a Samurai sword. The applicant’s school performance was raised as a possible indication of an insipient psychosis or serious personality disorder. Also much was made of evidence suggesting frequent solitary truancy from year 9 onwards.
59. A number of the above mentioned symptoms were the subject of dispute in the course of the hearing.
Dr Sale’s Evidence
60. It is apparent from the opening remarks of Dr Sale’s second report of 20 November 2003 that he had been informed that there were doubts about whether the alleged incidents at Kapooka had in fact occurred. He said in that report (p.2):
“I understand from reading the T documents that the history provided by Mr Taylor is questioned. Specifically, the various incidents he reports as occurring at Kapooka have not been verifiable, and that the only incident that is conceded is that blanks were discharged in the pre-dawn period in the accommodation area.
If the incidents did not occur as alleged, then a diagnosis of Posttraumatic Stress Disorder cannot be made. I would not consider that the firing of blanks in the accommodation centre on one occasion would be sufficient to cause psychiatric disturbance.”
61. It appears Dr Sale changed his opinion because of a number of factors. His report of 20 November 2003 explains the basis of his changed opinion. In summary the reasons for the changed opinion were:
(1) Doubts whether the alleged incidents occurred at Kapooka.
(2)That this was a case of “delayed onset” of PTSD and there was nothing about the applicant’s situation “… that suggests he was likely to have developed a delayed onset of symptoms”. (Report p.3)
(3)The Quickview report and VVCS notes indicate certain symptoms which are “not at all typical of posttraumatic stress disorder.” He refers in particular to auditory hallucinations, persecutory beliefs, feelings of being controlled, thought insertion and the other symptoms set out in his report.
62. As far as the first reason is concerned I simply point out that the Tribunal has already made findings in respect to each of the incidents and has found all four incidents occurred substantially as alleged by the applicant.
63. Under cross-examination Dr Sale said that he had gained his impression before writing his first report that there was “…. A continuous climate of oppression, abuse, humiliation and threat” at Kapooka. He agreed that the entirety of the period of training led to the disorder without having to consider individual incidents. (Transcript p.665). In addition to the findings relating to particular incidents the Tribunal does in fact find that there was indeed such a climate of “oppression, abuse, humiliation and threat” to adopt the precise words used by Dr Sale.
64. When the facts as now found by the Tribunal concerning the firing of rifles in the barracks were in essence put to Dr Sale, he said “… it would frighten the wits out of anyone…”. (Transcript p.657) and “… you might conceivably feel that you’re in danger …”. When asked whether the incident could cause fear or helplessness, he said “… Oh, probably fear.” (Transcript p.658).
65. Dr Sale agreed that if the “swagger stick incident” occurred it might satisfy the two sub-criteria of criteria A (in DSM-IV) for PTSD. He said it “…. could do …” and agreed that if the applicant’s responses are accepted then he has experienced intense fear and helplessness.
66. In cross-examination when the essential facts as now found by the Tribunal concerning the Bombardier Johnston incident were put to Dr Sale, he said that he thought “…Constable Wicks might have a claim for post-traumatic stress disorder …”, but as far as the applicant was concerned Dr Sale said “… I think you can get in but it’s a technical one.” Mr Browne asked: “Well, he says he was absolutely terrified by the behaviour; isn’t that intense fear or helplessness?” and Dr Sale answered “Yes”. (Transcript p.663) The Tribunal has already made a finding that both Wicks and the applicant were abused and threatened by Johnston.
67. As far as the “swimming pool incident” is concerned Dr Sale said in cross-examination the applicant would “… probably be angry” but that the incident would not satisfy the DSM-IV criteria.
68. Dr Sale acknowledged in evidence that the first three incidents at Kapooka were capable of satisfying the relevant criteria A in DSM-IV (see Transcript p.672).
69. The second basis for Dr Sale’s changed diagnosis was the fact that there was nothing about the applicant’s history to indicate that he was likely to have a delayed onset of PTSD. However he agreed with the proposition that it was possible in the applicant’s case “…. That he had an underlying illness that was effectively undiagnosed until it became clinically symptomatic in 1995 or 1996 at the latest when he saw Dr McCafferty.” (Transcript P.674)
70. In changing his earlier opinion, Dr Sale obviously placed significant weight on remarks in a typed summary of the VVCS notes (Exhibit R2) The Quickview Social History (Exhibit A6) and the MMP1-2 report (Exhibit R3). When asked what evidence he had of psychosis or psychotic behaviour apart from that set out in those documents, Dr Sale said “none”. (Transcript p.680) In his second report of 20 November 2003, Dr Sale had suggested that the applicant may be suffering from an “… incipient psychotic illness.”
71. Dr Sale agreed that Dr Burgess, who had seen and observed the applicant 21 times for 45 to 50 minutes and had seen no signs of psychotic behaviour or symptoms, was well placed to make such an observation. (Transcript p681)
72. Dr Sale refers in his second report (p.3) to the Quickview Social History report (Exhibit A7) and its reference to “Symptoms such as auditory hallucinations, persecutory beliefs, feelings of being controlled, thought insertion, visual hallucinations, and unwanted repetitive thoughts.” Although Mr Webb arranged for the relevant questionnaire to be completed by the applicant and for the results to be faxed to Sydney so that they could be entered into a computer to produce a profile, he said he considered the results to be “… fairly useless”. Dr Sale himself said in evidence:
“I’m not a great fan of questionnaires because for the most part they’re rather transparent and therefore open to distortion and manipulation…”.
73. It is clear from the evidence that a number of errors were contained in the profile produced by the computer from the questionnaire, including that the applicant had been convicted of “criminal offences”, had attended “ROTC” (officer training college) had attended “junior college” and held an “Associate Degree”. I find on the evidence that the Quickview Social History report generated by the computer has itself little value except as a screening device. Further analysis and follow up clinical assessment was clearly required before any reliable conclusions could be reached. The applicant disputes the accuracy of comments in this report sourced to him, and much of the content of the report is quite inconsistent with the assessments of experienced medical experts who had considerable personal contact with the applicant.
74. Dr Sale also gave weight to the VVCS notes as perhaps indicating a psychosis. In particular a good deal was made of the early interview notes of Mr Keith Meredith, who although holding a Masters Degree at the time was a relatively inexperienced psychologist. In his very first contact with the applicant he appears to raise the possibility (I might say his handwriting is difficult to read) that Mr Taylor might be suffering from a “delusional disorder or schizophrenia”. It is interesting to note that Dr Sale said in evidence (Transcript p.638) he had no reason to doubt the value of that opinion, yet in contrast he did cast some doubts on the opinions of two very experienced psychologists in MrsLaver and Mr Webb.
75. Dr Sale refers in his second opinion to the mention made in VVCS notes of “… paranoia, a belief that he was being followed, voices in the head …”. He goes on to refer to “… odd switches of religion …”.
76. Various explanations were suggested for the inclusion of the words in the VVCS notes. The applicant said that he had never reported to anyone that he heard someone else’s voice in his head. He said he had heard his own voice. He said “So it’s like decision making” (Transcript p.78). As far as feelings of being controlled by people he said “I felt controlled by the people at Kapooka …”. It is necessary to know with some accuracy exactly what Mr Taylor told Mr Meredith before concluding that the notes have any value as evidence suggesting some sort of psychosis. They were the notes of a then relatively inexperienced psychologist seeing the applicant for the very first time.
77. In considering a possible diagnosis, Dr Sale believed the applicant’s various school reports and in particular the issue of truancy were potentially relevant. I find that that there was nothing particularly remarkable about the applicant’s childhood, adolescence or in his school reports which might point to his suffering some form of psychosis or serious personality disorder. He was obviously not a strong academic performer, but appears to have been a reasonably normal young person who took part in school activities, played sport and was generally well behaved. Although Dr McCafferty mentioned in his report 6 September 1996 “He indulged in solitary truancy frequently for year 9 onwards” interestingly the written school reports at the time do not highlight truancy as a problem, except that two “unexplained absences” were reported in the Parramatta High School report of 5 December 1986. In other school reports tendered it was noted that there were no “unexplained absences”. There were lengthy periods of absence in 1987 with the noted explanation of “severe tonsillitis”. Dr Sale doubted this explanation and said it tended to corroborate the reference to truancy in Dr McCafferty’s report. Mr Taylor when cross-examined by Mr Morgan did admit that from year 9 onwards he “… had a few days off here and there – but most of them were like – like an illness.” (Transcript p.134)
78. I find that on some days from year 9 year onwards that the applicant did fail to attend school. I do not consider that to be cogent evidence of a psychosis or some other underlying illness. Dr McCafferty said he saw the applicant only once in 1996. Although he noted that the applicant “hated school because teachers looked down on their students” and also the truancy issue he did not diagnosis a psychosis but tentatively suggested “episodic dyscontrol” as a possible explanation of the symptoms.
79. In his first written report of 3 November 2000, Dr Sale expressed the opinion that the applicant was partially incapacitated for work. He also expressed the view that the applicant had suffered a permanent impairment which he estimated to be 10 per cent. (Page 4 of the report). When cross-examined he said the applicant’s capacity for work was “poor” and agreed it to be of the order of 30 or 20 percent. (Transcript p.692)
Dr Burgess’s Evidence
80. Dr Burgess, an experienced psychiatrist whose expertise was readily conceded on behalf of the respondent, provided a detailed report to the applicant’s solicitor dated 28 October 2004. He classified the applicant’s condition as “… a post-traumatic stress disorder”. He said:
“The trauma does not need to be life-threatening, and can involve the threat of serious injury or a threat to the physical integrity of self or others. Neither does the trauma need to produce symptoms in every individual, as some people seem to be more prone to develop PTSD. Certainly helplessness and powerlessness in the face of the trauma seem to be key features in those who develop PTSD, whereas those who are able to take some action or exert some kind of control over their fate seem to be less prone. In the incident with the firing of blanks from the SLR, it has to be remembered that Mr Taylor was waking up from sleep, and had no idea that the ammunition was blank. In the incident where an article was identified by Mr Taylor as either a bayonet or a swagger stick, his uncertainty at identifying precisely what the implement was could be explained by one of the diagnostic criteria for PTSD, namely the inability to recall an important aspect of the trauma. Certainly if part of his mind thought that it might be a bayonet, this certainly fits with a life-threatening situation. Again in the incident where he was awoken by someone shining a light in his eyes, he was woken from sleep and an object which he could not see was stuck up his nose. The incident in the swimming pool constitutes an assault, with the added fear of possibly drowning.”
81. In oral evidence Dr Burgess said the applicant “… certainly fitted the diagnostic criteria in DSM-IV.” (Transcript p.222)
82. With respect to he cause of the PTSD he said “I thought it was due to traumatic treatment in the army in terms of bastardisation and the way at times he was humiliated and terrified and that that had quite a traumatic affect on him.” (Transcript p.226). Dr Burgess said the applicant would be capable of working 25 to 50 percent of the working week, but it will be difficult for him to find a suitable position. He did not agree with Dr Sale’s opinion that there were psychotic symptoms. Dr Burgess said “there was no evidence of thought block or other kinds of things that you would get with schizophrenia and no evidence of hallucinations or delusion so I think that – I mean, Dr Sale didn’t actually base that diagnosis on a clinical interview and it’s difficult to diagnose a psychotic illness if you’re not actually interviewing someone.” (Transcript p.231) Dr Burgess also said: “His presence in the room is strong and his warmth and humour as I said are there so it’s very difference from someone who is psychotic, whose personality is disintegrating and where they’re kind of withdrawn behind this glass screen.”
83. Rather surprisingly Dr Burgess said in evidence that the applicant may still have suffered PTSD if none of the incidents had occurred as alleged. He did add that it would then be “… less likely.” (Transcript p.275) The Tribunal has, of course, found that the incidents did occur largely as alleged by the applicant. Dr Burgess’s view however was perhaps better explained earlier in his evidence when he said it was important to consider the whole treatment of recruits throughout their training, rather than concentrate only on the particular incidents which he said “… were the tip of the ice berg …”.
84. Dr Burgess said that as a result of the PTSD the applicant was only capable of part-time work, and indicated the difficulties the applicant would face in finding suitable work. He said the applicant may now be capable of working only 25 to 50 percent of the working week.
Mr Webb’s Evidence
85. In January 1999 the applicant was referred by the VVCS to Mr Webb, an experienced consultant psychologist, and has been seeing Mr Webb on a more or less regularly basis since that date. Mr Webb said in his report of 15 April 2004 that:
“… when I examined Mr Taylor the symptoms and the clinical history collected seemed to be consistent with a diagnosis of Post Traumatic Stress Disorder (PTSD). I administered a Mississippi PTSD Scale in order to try and obtain some confirmation or otherwise of this diagnosis. I also discussed the case in detail with my colleagues. The score on the Mississippi Scale was 156 which not only suggested that Mr Taylor met the diagnostic criteria for PTSD the score was very high which seemed to confirm that the symptoms he was experiencing were quite severe in nature. I then arranged for Mr Taylor to be examined at the Hobart Clinic and administered the MMPI. The results of the MMPI seemed to confirm the results of the Mississippi Scale and the clinical information I had collected during interview sessions with Mr Taylor.”
Mr Webb also stated:
“Mr Taylor has never displayed behaviour during our sessions that would lead me to think he was psychotic or had a severe personality disorder. Mr Taylor has never; during the times that I have seen him, displayed behaviour that my suggest he is hearing voices or displaying psychotic symptoms. He has used these terms as way to explain how he has been feeling.”
In his report Mr Webb concluded that:
“Mr Taylor’s reporting of traumatic incidents has been unvarying and consistent across time and I understand is in accord with the observation and recollection of others.
In summary I suggest that the information contained in Mr Taylor’s file points to him having an incapacitating and extremely isolating Post Traumatic Stress Disorder.”
Mrs Laver’s Evidence
86. The applicant consulted Mrs Laver, an experienced clinical psychologist on 16 occasions between July 2001 and December 2002. In her report of 31 March 2004 Mrs Laver made the following comment:
“At the time of His first consult with me I noted that Ed impressed as being extremely tense, restless and easily agitated. He reported symptoms of elevated anxiety, feelings of irritability and judged that he was intolerant to the point that he would explode with anger. He also reported concentration difficulties, significant sleeping difficulties, and recurring nightmares relating to his army training from which he would wake in a sweat and after which he would be angry all day. He indicated understanding that he became angry when he was anxious and reported past episodes of blanking out when he “goes off” his brain with anger. He told me he could not cope with being in crowds, catching buses or going into supermarkets because he is “looking over” his shoulder.”
Mrs Laver added in her report:
“It is also my opinion that the symptoms as described above were in keeping with the diagnostic criteria as outlined in DSM IV, for Posttraumatic Stress Disorder, in that during his Army training, he had experienced an episode/episodes during which he genuinely feared for his life, the recall of which remained persistent and unfading, as did his psychological distress at thoughts of these. I also noted recurring nightmares, significant avoidance behaviour (and reports of past periods of dissociation) and significant persistent symptoms of hyperarousal.
In addition to this, I was of the opinion that Ed was experiencing significant symptoms of depression in that he was demonstrating social withdrawal, low self esteem and loss of confidence, as well as psychomotor agitation and insomnia.
I did not find any evidence of psychosis or psychotic behaviour.”
87. Under cross-examination Mrs Laver was asked about the report that the applicant was experiencing “visual hallucinations”. She responded that “… she would want to know what that meant … I would rather see written down words that are more meaningful.”
88. Although strongly challenged in cross-examination Mrs Laver was not swayed from her opinion that Mr Taylor was suffering PTSD and not some form of psychotic condition.
Conclusion
89. I find that the applicant was a reasonably normal young man prior to entering the army in August 1991. He was not then suffering from an established or insipient psychosis and he did not have a serious personality disorder.
90. The applicant was exposed to extreme stressors involving threats to his personal integrity and felt fear as a result of the incidents at Kapooka during his initial training, particularly the “Bombardier Johnston”, “firing of rifles in the barracks” and “swagger stick” incidents.
91. In addition to the four alleged incidents, I indicate that I am satisfied on the entirety of the evidence before me that recruits undertaking training at Kapooka at the relevant time including the applicant were generally subjected to an unacceptable level of repeated verbal and physical intimidation and abuse which can accurately be described as a form of “bastardisation”. It is, of course, appreciated that army recruits have to be taught discipline and be toughened and prepared for the extraordinary demanding life of a soldier. But the evidence before me satisfies me that at least some of those responsible for training repeatedly went well beyond the bounds of reasonable conduct in the methods they adopted. Many comments in the evidence of the applicant, and other witnesses Constable Wicks, Sergeant Lee, Mr Florey and Warrant Officer Boatwright satisfy me that a culture of bastardisation existed at Kapooka at the relevant time. The culture was crudely but accurately described by Mr Florey when he admitted in evidence on the morning of “day one, week one” after rifles had been fired in the barracks, shouting at recruits and using the words “You cunts welcome to 13 weeks of absolute hell”. (Transcript p.457)
92. Sometime after leaving the army the applicant’s health began to deteriorate. I find he then suffered a number of the symptoms of PTSD as set out in DSM-IV, including re-experiencing traumatic events, nightmares, difficulty with sleeping, sweating, irritability and outbursts of anger, difficulty concentrating, lapses of memory, hyper vigilance, feeling of detachment and estrangement from others and other symptoms. I am not satisfied on the evidence that the other symptoms and behaviour which it was contended suggested some kind psychosis were inaccurately reported on were not in this instance indicators of a psychosis or a personality disorder.
93. Perhaps a more difficult issue for the applicant was the reference in DSM-IV to avoidance behaviour and the evidence, which was not in dispute, that the applicant desired to rejoin the army or some other military force. Dr Burgess said in evidence that this was “atypical” but believed it was still consistent with the diagnosis of PTSD. He said such behaviour can be “counterphobic”. Dr Sale said this behaviour “did not sit well” with PTSD but did not categorically state that this behaviour ruled out PTSD. There is no suggestion in the evidence that the applicant wished to return to Kapooka or have contact with those who caused his trauma. I accept Dr Burgess’s view that in all the special circumstances of this case that behaviour is not inconsistent with a diagnosis of PTSD.
94. I also mention that I do not, on all of the evidence, consider the applicant’s possession of various weapons to be an indicator of a psychosis or serious personality disorder and that he is not suffering from PTSD. He has an interest in weapons and martial arts. He explained that he slept with weapons close at hand because of what happened at Kapooka. This may be unusual conduct, as was his various changes in religion, but on all of the medical and other evidence that conduct does not counter the strong view of three expert witnesses that the applicant is in fact suffering PTSD.
95. The reality is that overwhelming preponderance of expert medical evidence in this application pointed to the applicant suffering PTSD and that the explanations for his unusual conduct was not some form of psychotic illness or severe personality disorder. This was the view of Dr Burgess, Mr Webb and Mrs Laver who had all seen and observed the applicant on numerous occasions over a lengthy period of time. It was also the initial opinion of Dr Sale after he interviewed the applicant for the one and only time in November 2000.
96. It was argued on behalf of the respondent that Dr Burgess, Mr Webb and Mrs Laver had all lost their objectivity as treating practitioners. I do not find this to be the case. They were certainly supportive of the applicant, but generally gave their evidence in a fair and professional manner and were not swayed from their basic thesis despite rigorous challenges from the respondent’s counsel. The reality is that they had ample opportunity to observe the applicant and they came to know him and his foibles well. They did not detect any psychotic behaviour and believe the cause of his problems was PTSD and not a serious personality disorder.
97. On the other hand Dr Sale had very limited experience of the applicant. He changed his opinion in 2003 not on the basis of his own observations of the applicant, but as a result first, of inaccurate factual information about the incident at Kapooka and second, written reports compiled by others of statements said to be made by the applicant. The applicant denies that the reports accurately reflect what he actually said and other doubts were raised about their validity. So the evidence before the Tribunal undermines the very foundation of Dr Sale’s second opinion. (See Ramsey v Watson (1961) 108 CLR 642).
98. After carefully considering all of the medical evidence I prefer the evidence of Dr Burgess, Mr Webb and Mrs Laver and indeed Dr Sale’s first opinion to the opinion of Dr Sale provided in November 2003. It is, of course, ultimately a matter for the Tribunal to determine if the applicant is indeed suffering from PTSD. I do so find.
99. Further, I am satisfied, on the material before me, that the applicant’s employment in the army “contributed to” the onset of PTSD “… in a material degree”.
100. “Contributed to” provides a less stringent test for disease that for a physical injury (See Favill Mort Ltd v Murray (1976) 133 CLR 540; see also O’Neill v Commonwealth Banking Corporation (1987) 75 ALR 154. In Treleor v Australian Telecommunications (1990) 26 FCR 316 the Full Federal Court provided a most helpful exposition of the meaning of “material” even though the Court was there considering the 1971 Act. It said:
“It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the conduct complained of”.
101. In this case there is a sufficient causal link between the applicant’s work and the disease to satisfy the “contributed to in a material degree” test in the 1988 Act.
102. The evidence of Dr Burgess and Mr Webb suggest that although there was not a pre-existing disease or a serious condition, there was a certain susceptibility or vulnerability on the part of the applicant. This may explain why the applicant has suffered PTSD whereas other recruits who were also subjected to harsh treatment did not. It may even explain why the applicant was singled out for special treatment. But it is a well established legal principle that you “take your plaintiff as you find him”. As Mason JA, as he then was, said in Migg v Wormald Bros. Industries Ltd 1(972), 2 NSWLR 29 at 44:
“The legal concept of causation when applied to the field of personal injury takes the person injured as it finds him with all his pre-dispositions and susceptibilities whatever they may be.”
102. There is evidence, which I accept, that the applicant is not now able to engage in the same level of work he was capable of immediately prior to the onset of the disease (See s.4(9) of the Act). Both Dr Burgess and Dr Sale gave evidence concerning the percentage of incapacity. Dr Sale also gave evidence of permanent impairment and said the relevant percentage of impairment was 10%. I am satisfied that there is an impairment and that it is likely to continue indefinitely in accordance with the definition in s4(1) of “permanent”.
103. I do find that the applicant is incapacitated for work and has suffered a permanent impairment as a result of the PTSD and has been so incapacitated and impaired since 31 July 1996. I accept the submission by Mr Morgan for the respondent that these matters were not subject to sufficient evidence and argument in the course of the hearing to permit the Tribunal to make a definite finding as to amounts and percentages. It will be a matter for the respondent to make a full and proper assessment of those matters in order to determine the amount of compensation payable to the applicant.
Decision
104. The decision under review is set aside and the matter remitted to the respondent with the following directions:
(a)The respondent is liable to pay compensation to the applicant in accordance with the provisions of the Act in respect to the disease PTSD which was contributed in a material degree by the applicant’s employment with the Commonwealth, and is an “injury” within the meaning of the Act.
(b)The applicant is incapacitated for work and has suffered a permanent impairment as a result of the said injury and has been so incapacitated and impaired since 31 July 1996.
(c) The amount of compensation payable to the applicant is to be assessed.
Costs
105. This decision is one to which s.67(9) of the Act applies. Therefore it appears that the applicant is entitled to costs. I will however hear counsel further as to costs if an application is made within 14 days. If no application is made within that time I will order that the respondent pays the applicant’s costs of these proceedings as agreed or taxed and that order will be incorporated in the decision.
I certify that the 105 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 15,16,17,18,19,22 November 14 December 2004
Date of Decision 11 March 2005
Counsel for the Applicant Mr Roland Browne
Solicitor for the Applicant Fitzgerald and Browne
Counsel for the Respondent Mr Brian Morgan
Solicitor for the Respondent Ms Naomi Richards, AGS
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