"VZR" and Repatriation Commission
[2001] AATA 554
•15 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 554
ADMINISTRATIVE APPEALS TRIBUNAL)
Nº V99/827
VETERANS' APPEALS DIVISION)
Re: VZR
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mrs H.E. Hallowes, Senior Member
Mr A. Argent, Member
Dr C. Re, Member
Date: 15 June 2001
Place: Melbourne
Decision:The decision under review is affirmed.
(sgd) H.E. Hallowes
Senior Member
VETERANS' AFFAIRS — entitlement — issue as to whether applicant suffering depression, post traumatic stress disorder, bipolar disease or personality disorder — whether service-related — whether severe psychosocial stressor — substance abuse
Veterans' Entitlements Act 1986 s.70
Statements of Principles
Instrument Nº 16 of 1994 concerning Post Traumatic Stress Disorder
Instrument Nº 225 of 1995 concerning Post Traumatic Stress Disorder
Instrument Nº 144 of 1995 concerning Personality Disorder
Instrument Nº 14 of 1997 concerning Personality Disorder
Instrument Nº 129 of 1996 concerning Bipolar Disorder
Instrument Nº 66 of 1996 concerning Depressive Disorder
Instrument Nº 59 of 1998 concerning Depressive Disorder
Budworth v Repatriation Commission [2001] FCA 317
REASONS FOR DECISION
15 June 2001 Mrs H.E. Hallowes, Senior Member
Mr A. Argent, Member
Dr C. Re, Member
The applicant, in lodging her application for review of a decision of the Repatriation Commission made on 22 June 1998 that her "severe depression" was not service-related, a decision which was affirmed by the Veterans' Review Board ("the VRB") on 10 June 1999, contended that her depressive condition had been materially contributed to by her defence service pursuant to "the relevant Statement of Principles" ("SoP"). The application for review was included amongst the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") which were before the Tribunal, together with a considerable amount of further material lodged by both parties at the hearing. The applicant was represented by Mr P. Jewell, of counsel, and the respondent was represented by Mr K. Rudge, an advocate with the Department of Veterans' Affairs.
In Budworth v Repatriation Commission [2001] FCA 317 (decided 21 March 2001) the Federal Court stated that applicants are not to be defeated because they inadequately label their disease. The disease from which the applicant suffers is not agreed by her general practitioners, treating psychiatrists and medico-legal experts, who examined her later for the purpose of these proceedings. One of the difficulties is that she now contends that earlier histories she had given to medical practitioners are incorrect.
Mr Jewell put to the Tribunal that the applicant suffers post-traumatic stress disorder and bipolar disorder and that the relevant Statements of Principles are Instrument Nº 129 of 1996 concerning Bipolar Disorder and Instrument Nº 16 of 1994 as amended by Instrument Nº 225 of 1995 concerning Post Traumatic Stress Disorder. Mr Jewell further put to the Tribunal that either factor 5(a), factor 5(c), factor 5(e) or factor 5(g) of Instrument Nº 129 of 1996 connect the applicant's bipolar disorder with the circumstances of her service on the balance of probabilities, or if the Tribunal finds that the applicant suffers post traumatic stress disorder, that factor 1(a), factor 1(b) or factor 1(c) of Instrument Nº 16 of 1994 connect her post traumatic stress disorder with the circumstances of her service. Those Instruments provide, so far as relevant, as follows:
5.The factors that must exist before it can be said that, on the balance of probabilities, bipolar disorder or death from bipolar disorder is connected with the circumstances of a person's relevant service are:
(a)experiencing at least one severe psychosocial stressor within the six months immediately before the clinical onset of bipolar disorder; or
. . .
(c)experiencing at least one severe psychosocial stressor within the six months immediately before the clinical worsening of bipolar disorder; or
. .
(e)suffering from substance abuse involving alcohol or cocaine at the time of the clinical worsening of bipolar disorder; or
. . .
(g)inability to obtain appropriate clinical management for bipolar disorder.
. . .
1.. . . the factors that must exist before it can be said that, on the balance of probabilities, post traumatic stress disorder or death from post traumatic stress disorder is connected with the circumstances of that service, are:
(a)experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or
(b)experiencing a stressor prior to the clinical worsening of post traumatic stress disorder; or
(c)inability to obtain appropriate clinical management for post traumatic stress disorder.
It was the respondent's contention that the applicant suffers a personality disorder and that the Tribunal should consider SoP Instrument Nº 144 of 1995 concerning Personality Disorder as amended by Instrument Nº 14 of 1997. In advising the applicant of his decision on 22 June 1998 to reject her claim that her severe depression was defence-caused, the delegate of the Secretary did not set out the SoP he considered when referring to factors concerning severe depression. Having reviewed the decision of the delegate of the Repatriation Commission, the VRB attached Instrument Nº 59 of 1998 concerning Depressive Disorder to its reasons for decision. When the Repatriation Commission determined the matter in June 1998, the SoP in effect was Instrument Nº 66 of 1996 concerning Depressive Disorder. That SoP was revoked by Instrument Nº 59 of 1998 in September of that year. Relevant factors which may connect the applicant's depressive disorder, if that is the disease from which she suffers, with her service are almost the same under both SoPs, which provide as follows:
5.The factors that must exist before it can be said that, on the balance of probabilities, depressive disorder or death from depressive disorder is connected with the circumstances of a person's relevant service are:
(a)experiencing a severe psychosocial stressor or stressors within one year immediately before the clinical onset of depressive disorder; or
(b)having a psychiatric condition within one year immediately before the clinical onset of depressive disorder; or
. . .
although factor 5(b) of Instrument Nº 59 of 1998 provides that the psychiatric condition must be "clinically significant". Under the earlier SoP, "psychiatric condition" means "any psychiatric illness that attracts a diagnosis under DSM-IV" and any "Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV". Under the more recent SoP, "clinically significant" is defined to mean:
. . . sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or General Practitioner;
"Severe psychosocial stressor" means under SoP Instrument Nº 66 of 1996:
. . . an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
The factors in the SoP concerning Personality Disorder are:
1.Being of the view that, on the sound medical-scientific evidence available to the Repatriation Medical Authority, it is more probable than not that personality disorder and death from personality disorder can be related to eligible war service (other than operational service) rendered by veterans and defence service (other than hazardous service) rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(3) of the Veterans' Entitlements Act 1986 (the Act), that the factors that must exist before it can be said that, on the balance of probabilities, personality disorder or death from personality disorder is connected with the circumstances of that service, are:
(a)suffering a catastrophic experience that immediately preceded an enduring personality change to the level of disorder; or
(b) inability to obtain appropriate clinical management for personality disorder.
"[E]nduring personality change" means:
. . . a psychiatric condition that is present for at least two years immediately following exposure to catastrophic stress; where
(a)the catastrophic stress must be so extreme that it is not necessary to consider personal vulnerability in order to explain its profound effect on the personality; and
(b)the personality change is characterised by a hostile or distrustful attitude towards the world, social withdrawal, feelings of emptiness or hopelessness, a chronic feeling of "being on edge" as if constantly threatened, and estrangement;
The applicant gave oral evidence that she was born in February 1969. She has two older brothers. She grew up in a country town and she completed the last two years of her secondary education in 1985 and 1986 at a technical college where she pursued food and hospitality studies. She enlisted in the Royal Australian Navy ("Navy") for a six-year engagement in March 1987, when she was aged just over 18 years. She was accepted into the branch of her choice, Supply, and undertook her recruit and trade training as a cook at HMAS Cerberus. She was back-squadded in her cooking course due to illness. On completing her training she was posted to HMAS Kuttabul, a shore station in Sydney, on 2 November 1987 as a cook in the main galley. She was on strength at HMAS Kuttabul for just over four years before being posted to HMAS Harman in Canberra on 12 January 1992. Her next posting was sea service in HMAS Canberra from 10 January to 24 April 1994. During that period, HMAS Canberra sailed to New Zealand, returning on 24 February 1994, and during the subsequent refit the applicant was detached to the galley at HMAS Kuttabul, although remaining on the strength of HMAS Canberra. Her defence service ceased in April 1994 when she transferred to the Military Compensation Scheme.
In April 1994 the applicant underwent 3 days detoxification and she attended an alcohol rehabilitation education programme ("the rehabilitation programme") for a further 43 days before going on convalescent leave for 11 days. She was held on the books of HMAS Penguin in Sydney from 25 April to 26 June 1994. She was then posted to HMAS Cerberus in June 1994, resuming galley duties before being admitted to the Alfred Hospital in August 1994. The applicant remained on strength at HMAS Cerberus where she transferred to the Writers' Branch, but she was admitted to hospital with a recurrence of major depression in late 1996 and again during the second half of 1997. She was examined by a Medical Board of Survey on 27 March 1998, and discharged from the Navy on 30 June 1998, having been found medically unfit for naval service due to depression, it being recorded that her disability was "Constitutional, not due to naval service but aggravated by naval service" (exh 3).
The evidence before the Tribunal with respect to the applicant provides conflicting histories provided by her with respect to her early years. In response to questions by Mr Jewell at the hearing about her father she said that she believed she had a good relationship with him. She gave oral evidence that her father drank alcohol on Friday and Saturday nights, but she did not think she was affected by her father's drinking although she had seen him intoxicated. She denied the record that she had developed a drinking problem at the age of 13 years. She also denied drinking to excess as a teenager. She described a sexual encounter with an older cousin when she was a child, which, she said, had not affected their relationship.
Mr Rudge put to the Tribunal that medical practitioners had recorded histories that the applicant had undergone a series of negative life events. In particular he drew the applicant's attention to a report by Dr P. Wurth, consultant psychiatrist, dated 13 April 1994 and Dr Wurth's opinion that the applicant's problems were the consequence of her childhood. Dr Wurth had recorded a history given by the applicant that her father was an alcoholic. The applicant denied that history when giving oral evidence to the Tribunal. Dr Wurth also recorded a history he had taken from the applicant that her father and brothers beat her, and that her father showed her no love. She told the Tribunal that that was not true. She said she could not remember what Dr Wurth's record was about and she said that she had been hysterical at the time she provided that history. She thought she may have wanted to blame everyone because she was desperate to get out of the Supply Branch and in order to achieve that, it would be more acceptable to the Navy for her to blame her family.
The applicant's naval medical records include a report by a substance abuse counsellor that the applicant did not get along with her father and that he was physically and verbally abusive, and that she had been sexually abused by a cousin (exh 3). The applicant provided a drinking history to the counsellor that she had been given alcohol on a regular basis from the age of 5 years and that at the age of 15 years she was regularly drinking 20 standard drinks at weekends. When responding to questions asked by Mr Rudge at the hearing, the applicant denied the history that she first got drunk on her 13th birthday and "loved it", but she said, "That sounds like something I would have said standing up at the AAs". She did not think that she would have been drinking 20 nips of spirits and mixes on weekends when aged 15 years. She denied a history of being abused by her brothers and she gave evidence that there had been no more than normal sibling rivalry between them. When asked to explain a history recorded by her treating psychiatrist, Dr E. R, that she was drinking to oblivion at the age of 13 years, she said that Dr R must have noted that history from medical records Dr R may have had before her. The applicant told the Tribunal that when she first consulted Dr R, she had just come out of the rehabilitation programme, although she conceded Dr R would have taken a comprehensive history from her. In response to a question on her entry medical history questionnaire the applicant had stated that she did not drink alcohol (exh 3). She weighed 63kgs, it being noted "some overweight" [sic] (exh 3).
When giving oral evidence to the Tribunal the applicant denied having low self-esteem when she joined the Navy, describing herself as a confident person with high self-esteem. She outlined school and community activities she had participated in, and said that she had a part-time job when at school. The applicant said she frequently had school friends to her home and that would have been unlikely if she lived in a bad environment. She denied that experiences in her childhood made her lonely and desperate as an adult in the Navy and that her childhood experiences had affected her later in life. Rather, the applicant contended she lost confidence as a result of her experiences in the Navy. She denied that she had always lacked confidence as recorded in an Alfred Hospital report dated 6 September 1994. The applicant suggested she had been brainwashed during the rehabilitation programme. She said she had been told that if she did not successfully complete rehabilitation, she would be discharged from the Navy, and that ". . . All I can think of is that I was targeting my family because they were the easiest people to target". Mr Rudge drew attention to a history obtained by a psychiatric registrar at the Alfred Hospital from the applicant that her father was a violent alcoholic who criticised those about him.
The applicant said that, having completed recruit training at HMAS Cerberus, she was posted to HMAS Kuttabul in November 1987. There were four or five other females in the galley. She described herself as being nervous and said that she was surprised to be told that divisional meetings were held at a local "pub". She thought that the male cooks played games and made jokes in order ". . . to suss out this new, single, young cook there". In her opinion the other cooks wanted to test her out and to see how good a drinker she was. It seemed to her to be an initiation into the cooks' environment. Comments were made about her large breasts. Her breasts were touched and the male cooks exposed themselves in the change room. She was posted over Christmas 1987 when other female cooks were on leave. She became intoxicated and, following a sexual encounter, she underwent termination of pregnancy on 27 February 1988 which she said was upsetting ". . . because I didn't know which - if it was a cook who had done it or a naval policeman who had done it".
The applicant gave further evidence that she became "hysterical" when two naval policemen arrived one Friday afternoon when she was on duty. She was taken into the chief cook's room, and asked if she was aware that one of the other cooks was using intravenous drugs. She was asked whether the cook was gay and whether she had had sexual intercourse with him. She was then advised that the cook had AIDS and told ". . . we believe you have AIDS, too". The applicant told the Tribunal that she does not think her life has been the same since then. She thought she was going to die. The episode ". . . all got around the galley on the Monday morning when I came in. Everybody knew about it. Oh, how do you feel? You got AIDS.". She recalled drinking quite a lot after the AIDS episode. She underwent a test for AIDS in August 1988. The results were negative. The applicant's medical records (exh3) point to the applicant undergoing further blood tests for other reasons which included HIV analysis. The evidence before the Tribunal now points to the cook in question as not being HIV positive.
The applicant said that she moved off base into a unit with another cook for protection when at HMAS Kuttabul. She commenced a relationship with a leading seaman and their son was born on 20 April 1991. The behaviour of the male cooks in the galley "eased as she had a partner", although during part of her pregnancy she could not lift heavy objects and ". . . they would bag me and call me a fat, lazy, . . . for not lifting the 10 and 20 kilo bags of potatoes". When the applicant was posted to HMAS Harman her duties were again in the main galley. She said that the harassment was not as bad as it had been at HMAS Kuttabul however ". . . the touching, the comments, the snide remarks, the innuendos, the sexual remarks" continued.
The applicant was medically examined for re-engagement in the Navy on 17 June 1992. Her psychiatric assessment was normal. Her proposed medical category was "one". She underwent a breast reduction on 31 May 1993, followed by convalescent leave and she was then placed on light duties. She said that she again felt unsafe when her partner was posted to HMAS Perth, and went to sea. "Big changes" then occurred in her drinking habit. ". . . it increased severely." She was having a drink before she went to work because ". . . I just didn't want to face them any more". She described an episode when she was out with a friend and left her son in the care of a babysitter. She arrived home to find a card from the police and she was later advised that someone had entered her house who got into bed with the babysitter and, from the description given to her, she thought it was one of the cooks. She later asked to be referred to a psychologist. She suggested to the Tribunal that what she was trying to tell the psychologist was that she was drinking too much, but the advice she received was that it was all right to "let off a bit of steam". Entries in her medical records (exh3) include a psychologist's report of August 1993 which states that the applicant was having problems with a long-term relationship and with her two year son, but they were "not causing difficulties with her work" (exh 3). In December it was noted that she was having trouble losing weight due to stress in the family and irregular shifts.
The applicant's partner returned from sea going duty before Christmas 1993, but he was again given a sea posting. The applicant commenced her sea duties in HMAS Canberra on 10 January 1994. Her mother looked after her son. She gave evidence that the separation from her son continues to affect her today ". . . because I don't have my son with me any more". The applicant described her posting in HMAS Canberra when the ship sailed to New Zealand, as a time when she
. . . was drinking on the ship. In the end I was stealing the beer out of the fridge, even though there was a lock or whatever. I mean, I worried so much for my son and I just missed him so much.
She said she drank because she was depressed. An issue of discipline arose in New Zealand and the applicant was required by her petty officer to work the three-day weekend on HMAS Canberra's return to Sydney. The applicant interpreted this as the petty officer making her "personally suffer" by delaying her opportunity to be reunited with her child. The applicant said that she also raised the issue of child care with the petty officer who told her to get a live-in nanny. It was after these issues that the applicant was transferred to HMAS Penguin.
A contract manager with the Department of Defence gave oral evidence that she was posted to HMAS Kuttabul in January 1988, serving there until August 1988. She met the applicant and recalled that the applicant ". . . was returning on board hung over on numerous occasions". She described relationships in the galley at HMAS Kuttabul as follows:
I thought everyone got on fairly well. It was a lot of hard work at times but everyone – there was a fair, there was a bit of skylarking that happened, jokes played, practical jokes played against each other, that sort of stuff that broke up the monotony.
The contract manager, who is the petty officer referred to by the applicant above, said that she could not remember the applicant ever objecting to what went on and she remembered her socialising amicably with the men in the galley. She said that she heard about an incident when one of the cooks placed his penis on a table, but she had not been present. She described the cook as a larrikin, and said that he liked to play a lot of jokes, and to liven the place up a bit. She described the action she had taken following HMAS Canberra's voyage to New Zealand and she denied harassing the applicant, but rather:
. . ., I believe that I used discretionary powers that I had as petty officer, to sort out a situation. The situation was VZR had gone out on the grog, she was duty on the Saturday had gone out [sic] – we'd got into a port, I can't remember if it was Napier or one of the other ports, on the Friday she'd gone out on the grog. She was hung over. She didn't fulfil her duties which meant that the person that took over on Sunday then had to do triple the workload to ensure that the galley was up to scratch. All his work was done, her work was – and everything was completed so that we could sail. Basically, the decision was made – there was two ways we could've went, we could've actually had VZR charged through the chief coxswain where she would've had to fronted [sic] the captain and possible charges – what she could've possibly got out of the charges was a fine for seven days, stoppage of leave up to 14 days, and 21 days suspension on the thing. I believe that was a little bit harsh and noting that we were going into a refit period where they automatically would work one – a three day weekend I believed that the best discipline was to use discretionary powers and use a three day weekend.
. . . So that was the powers that I used. I also – to ensure that I was doing the right thing on that, I had to speak to my boss and discuss it with him and he was in agreeance with the way I went.
The contract manager also gave evidence about counselling given in the Navy to females returning from maternity leave who must prove that their child will be adequately cared for, although males are not given similar counselling. She conceded that she had had a discussion with the applicant about child care, but said that she had only suggested that one of the applicant's options was to get a live-in nanny. It appeared to her that child care was not a problem for the applicant. She had raised the opportunity of the applicant deferring her sea going posting for 12 months in light of her responsibility for her son, but the applicant had told her that she did not want to defer, she was happy to be going to sea. The contract manager said that the applicant had never reported to her that she was being harassed.
Having been transferred to HMAS Penguin, the applicant saw Dr Wurth who reported on 13 April 1994 that the applicant
. . . has been feeling increasingly depressed and hopeless for some months, and intermittently for years. She was severely depressed prior to last Christmas but managed to shake this off. She has a three year old son by a man with whom she broke up last year but who remains involved in the care of this son. He is due to sail on Monday and his request to be taken off his ship in order to help look after his son was denied by his Divisional Officer on the grounds that he was not married and therefore his son was [the applicant's] responsibility, which seemed to me to be taking a rather sexist view towards parenthood. . . . She started drinking heavily when she joined the Navy and now drinks in a binge fashion to the point of having alcoholic blackouts that can occur at least once a week and several times a week depending on opportunity and money. . . . She binge eats, and this has been increasing over the last seven years, . . . (exh 3)
Dr Wurth diagnosed severe alcohol abuse, bulimia, and major depression, "all somewhat common and understandable consequences of the sort of childhood she has had" (exh 3). At discharge from the rehabilitation programme (see paragraph 6 above) the discharge clinical notes record that the applicant's presenting complaints were that she was tearful and unable to cope. Her other problems were the
Recent breakup of her de facto relationship — (3 y.o. son)
Grandmother unable to continue child care
Father has sea posting (exh 3)
The applicant's divisional officer reported on the applicant's work performance in the HMAS Canberra stating that he suspected that the applicant was masking ". . . a troubled identity which lacks self-confidence".
Following her attendance at the rehabilitation programme and her convalescent leave, the applicant was again posted to HMAS Cerberus. She said:
. . . they put me straight back into cooks branch and basically that is when I went nuts again, and that is when they put me into Alfred Hospital, and that is when I first met . . . [Dr R].
The applicant was admitted to the Alfred Hospital on 9 August 1994, remaining as an in-patient until 3 September. A diagnosis of adjustment disorder and borderline personality disorder was made. The applicant returned to part-time work in late October 1994. She was still classified as a cook, but she said that she undertook a writer's role. On 5 April 1995 she applied for an official transfer to the Writers' Branch, advising:
. . . After two or three years of being in the Cook branch I became very unhappy and lost all enthusiasm to continue in this Category, due to repetitive work, slow promotion and lack of challenge.
. . .
I have enjoyed my time in the RAN and would like to continue my service, but now find I require more job satisfaction in the workplace and feel if I continue as a Cook I will both be unhappy and discontented.
She contended at the hearing that she had provided these reasons for wanting a change of branch because it was necessary to give the Navy a letter of which they would approve. The Tribunal notes a minute dated 27 June 1995 with respect to the applicant's request for a reconsideration of the rejection of her application to transfer to the Writers' Branch:
. . .
The Reference advises that her application cannot be approved at this time due to continuing shortages in the cookery category. [The applicant] has been employed in administrative duties since Oct 94 and is currently posted medical to HMAS CERBERUS. The enclosed reports document the unlikelihood of this sailor effectively returning to a cookery sailor's billet, as her employment in these duties was a major factor leading to her current medical categorization. The sailor states she has no vocational interest in the duties of the cooker category and feels her dissatisfaction and dislike for this employment directly contributed to her recent health problems
. . . [emphasis added]
On 22 February 1995 the applicant made a statement to the Medical Board that she was very happy with her progress so far as treatment was concerned (exh 3). She stated that she believed the Supply Branch had contributed to her depression and she noted that she was in the process of seeking transfer to the Writers' Branch. She underwent abdominoplasy and liposuction of thighs and hips in August 1997. About this time she entered into a de facto relationship and issues arose for her with respect to relocating her housing closer to Melbourne to be with her de facto husband. In October 1997 she was again hospitalised and she was diagnosed as manic-depressive (see also paragraph 7). In a statement, written on 18 May 1998, the applicant recorded that she was ". . . coping and ceased medications on doctor's recommendation". Clinical notes and other documents in the applicant's file, from a general practice in the town where her parents live, state in February 2000, that a recent diagnosis of bipolar disorder had been made. Medication had "made her quite manic" (exh B) and clinical notes towards the end of 1999 refer to anxiety and a manic phase. In a report by Dr G. Sayran the applicant's solicitors were advised on 16 June 2000 (exh M) that the applicant had a well established diagnosis of mood disorder, but that she did not meet the full criteria of post traumatic stress disorder.
When asked by Mr Rudge why she had not reported her concerns about the AIDS episode or sexual harassment to her commanding officers during her service in the Navy, the applicant said that she had been "too scared" and that she had only been able to speak more openly to Dr R once Dr R was no longer working with the Navy. Mr Rudge also noted the "extraordinary amount of weight" the applicant gained in 1993 at the time when her relationship with her first de facto husband was breaking down, as opposed to any weight gain following the AIDS episode. It was the applicant's contention that her weight was ". . . up and down all the time". When it was put to her that she lacked confidence in relationships, she replied:
I think it was I was lacking confidence in myself basically because, yes, lacking in confidence of having my whole confidence and self esteem stripped from me.
The first medical reports from Dr R the Tribunal had before it are dated 4 August 1994 and 19 August 1994 (exh 9, 3). As well as a number of other reports from Dr R, the Tribunal had before it her clinical notes with respect to the applicant. At the first consultation Dr R recorded the applicant as stating that, during her teenage years, she was ". . . always sneaking around, lying to my family (where I was going, what I was doing)". She was obsessed with boys and sex. At a consultation on 25 October 1994 the applicant said she had been very promiscuous even during the first three years of her naval service and that she drank to avoid coping with life. In giving oral evidence to the Tribunal Dr R said that she thought the applicant may have been exaggerating her symptoms initially. Dr R reported that the applicant presented with ". . . problems of depression, suicidal ideation and bulimia" (exh 3) and that:
She has been based in Sydney for some time and moved to HMAS Cerberus about 4 weeks ago. She has become very depressed in the last 2 weeks and was admitted to the Cerberus hospital yesterday. She has suicidal ideation and 2 weeks of prominent sleep disturbance. She also had these symptoms several months ago, as well as continuing memory disturbance, concentration impairment, low energy and loss of enjoyment. She also feel [sic] unable to care for her 3 year old son (he is in the care of friends – her mother and former defacto will be arriving in the next day or two to take over his care) and that she is a bad mother. No psychotic symptoms were elicited, I felt she did not pose a high suicide risk at present.
Dr R noted that the applicant had been in a de facto relationship which ended in 1993 because of her infidelity and alcohol abuse. She recorded that the applicant was in despair about not being able to look after her son. The applicant did not enjoy the relationship with her son, and wept openly as she described the situation to Dr R. She also stated that she had been slim prior to joining the Navy and hated herself for being overweight. She described having many boyfriends, but never a stable relationship until she met her de facto husband. It was noted that her de facto husband had two children from a previous marriage and that she felt very insecure about his two children.
She felt the relationship was very empty and that her partner was unable to provide her with the love and support that she needed. She started drinking heavily around this time to blot out her feelings of despair. (exh 3)
Dr R expressed the opinion that the applicant's depression was
". . . secondary to long-standing low self esteem, caused by a difficult and emotionally deprived family background with the sense of inadequacy in interpersonal relationships and chronic low self esteem. (exh 3)
During the first half of 1995, Dr R was on maternity leave and the applicant was seen by Dr D. O'Loughlin (exh 3). The applicant told Dr O'Loughlin she felt that she did not belong in the atmosphere of the Navy kitchen areas which were very male dominated, from her point of view. The applicant was again referred to Dr R on 4 August 1995. Dr R recorded, ". . . Sleep disturbance, nightmares (going back to work as a cook)". On review, Dr R noted:
. . . It seems her depression is relapsing in the setting of social isolation and work-related stresses (inability to be reclassified as clerical worker). (exh 3)
By letter dated 1 February 1996, Dr R reported that the applicant's mental state had improved considerably and she was no longer suffering bulimia, acute depression or alcohol dependence (exh 3) but when seen on 29 March 1996 the applicant was churned up and angry.
The applicant had seen a sexual harassment officer who referred her to a Navy psychologist (Dr H. Martin) in March 1996. She disclosed the AIDS episode to the psychologist (see paragraph 12). By October, she was again not coping and she was admitted to hospital and again referred to Dr R. She continued to complain of low grade depressive symptoms in early 1997. In June 1997 it was noted in her medical records that, as a result of the applicant losing approximately 54kgs of weight in recent years, she had excessive redundant skin, which may require surgery. By October 1997 the applicant was seeing Ms D. Booth, social worker, at HMAS Cerberus. She also saw Ms K. Thornton for cognitive therapy. Ms Booth reported that the applicant was fearful of attending the hospital at HMAS Cerberus. On 12 October 1997 the applicant was admitted to Beleura Private Hospital (exh 3). She reported to Dr J. Newton, psychiatrist (exh 3), that she was experiencing a wide fluctuation of mood and that she was saying and doing ridiculous things and spending money. Dr Newton regarded the applicant as suffering from bipolar disease currently in a depressive phase (exh 3).
On 20 April 1998 Dr R wrote to Commander J. Firman at HMAS Cerberus Medical Centre with respect to the applicant after the decision had been made that she should be medically discharged. At that time Dr R thought that the applicant's problems were lack of structure in her life, fear of the future, and the side effects of medication. When Dr R reviewed the applicant in March 1998 she was shocked at the deterioration in the applicant's mental state. She later noted that the applicant became suicidal following discharge from the Navy. As well as the reports from Dr R appearing amongst the documents and the applicant's naval medical records, the Tribunal had further reports from Dr R before it and she gave oral evidence. In a report dated 25 June 1998 to the Military Compensation and Rehabilitation Service Dr R, after referring to the applicant's presenting symptoms, said that in 1995 the applicant started to talk about her experiences in the Navy. The applicant complained to her of ongoing harassment from her (mainly male) co-workers. She described constant sexual harassment, being called names and being physically touched. She provided the history with respect to being tested for AIDS, her humiliation and embarrassment and the difficulty in waiting for the result of the tests. She told Dr R that it had been a battle to transfer from the Supply Branch to the Writers' Branch. Dr R noted the applicant's description of family alcohol abuse and sexual abuse by male cousins.
The documents include a further report by Dr R, dated 30 March 1999. She noted that she had treated the applicant for depressive illness. Dr R stated in oral evidence that, as she got to know the applicant, she obtained a "more complete picture" and the story was rather different. She now understands that the applicant experienced ongoing, low grade subtle and not so subtle sexual harassment in the Navy. Childhood events had assumed an undue significance in the applicant's depressive frame of mind. Dr R diagnosed the applicant as suffering a major depressive illness and expressed the opinion that the applicant's employment had contributed significantly to her disease because of the prevailing culture of sexual harassment and degradation of women in the military services. She noted the AIDS episode which, from the history she had obtained, appeared to trigger the applicant's abuse of alcohol. However, the Tribunal notes the applicant's evidence that she had drunk to excess over the Christmas period in 1987 which was six months before the AIDS episode. By March 1999, the applicant indicated to Dr R that she had become more and more anxious and depressed, and that she had started to drink to excess following the deterioration of her first de facto relationship and because there was no one to look after their son when they were both at sea. She provided a history of developing severe depressive illness with paranoid and psychotic features, leading to hospitalisation at Beleura Private Hospital when Dr R was on maternity leave in 1997. The applicant later told Dr R that she found life on the naval base confining but that she was denied permission to move off base.
In her reports Dr R expressed a view about the decision to medically discharge the applicant and the effect of the discharge on the applicant but, as discharge occurred after the period of service with which the Tribunal is concerned, the manner in which it was undertaken is not relevant to the considerations of the Tribunal other than any light it may cast on the issues before the Tribunal.
In a report dated 2 June 2000 Dr R noted that the applicant had previously described the AIDS episode to her but she had not previously expressed her fears of ongoing contamination with AIDS. She told Dr R that she had not done so because she felt no one would have believed her and that she would be considered very foolish to have ideas that she may still have AIDS, even though her tests were negative. The applicant was now telling Dr R that she did not have a difficult childhood and she suggested to Dr R that the emphasis she had earlier placed on childhood as causing her problems, rather than her time in the Navy, was the effect on her of her alcohol rehabilitation when she was persuaded to point to family issues as contributing to her drinking. Dr R stated that, as she had first seen the applicant only months after she had undertaken the rehabilitation programme, it was not surprising to her that the applicant had over emphasised her developmental history during early consultations. Dr R contrasted the applicant's structured life in the Navy with what had occurred to the applicant since discharge and it appeared to her that, with the loss of structure, the applicant's "whole world collapsed" (exh D). The applicant told Dr R that she did not wish to be discharged from the Navy as she would have no means of supporting her child. The applicant stopped consulting Dr R in early 1999.
When seen at the end of May 2000 for the purpose of a medico-legal report, the applicant described mood swings to Dr R. Dr R then diagnosed the applicant as suffering either bipolar II disorder or major depressive disorder but she rejected a diagnosis of post traumatic stress disorder as the applicant had not been exposed to extraordinary life threatening situations, although there had been trauma in the AIDS episode and her experiences in alcohol rehabilitation. In giving oral evidence Dr R said it is "possible" the applicant has a bipolar disorder, but she would have to explore the applicant's symptoms more fully to come to that conclusion rather than relying on a report of a general practitioner who had only seen the applicant briefly. Nor did Dr R consider that the applicant met the diagnosis of borderline personality disorder in June 2000. She noted that the DSM-IV requires 5 or more of 9 criteria to be met and in her opinion over the last 18 months, only 2, or at most 3, would be met. It was also her opinion that people with borderline personality disorder tend to mature out of the disorder at about the age of 30 years. The criteria include:
. . .
1.Frantic efforts to avoid real or imagined abandonment.
2.A pattern of unstable and intense interpersonal relationships characterized by alternating between extremes of idolization and devaluation.
3.Identity disturbance: markedly and persistently unstable self image or sense of self.
4.Impulsivity at least two areas that are potentially self damaging (eg. Spending, sex, substance abuse, reckless driving and binge eating).
5.Recurrent suicidal behaviour, gestures or threats or self mutilating behavior.
6.Instability due to marked reactivity of mood - - - - - - - - - - usually lasting only a few hours and only rarely more than a few days.
7.Chronic feelings of emptiness.
8.Inappropriate intense anger or difficulty controlling anger.
9.Transient stress related paranoid ideation or severe disassociative symptoms. (exh D)
Dr R stated that the applicant may meet criteria 3, 6 and 7.
In her final report dated 1 February 2001, when asked to comment on the opinion expressed by Dr K. Byrne, clinical psychologist, Dr R rejected Dr Byrne's suggestion that the applicant had forgotten about the AIDS episode and she stated that it was more likely the applicant felt so ashamed and humiliated that she had been unable to discuss it with anybody for a number of years. Dr R said she has never seen the applicant in a frantic, manic or hypomanic phase and that the applicant may not have obtained "appropriate clinical management" for her depressive disorder.
The Tribunal had before it two medico-legal reports from Dr Byrne dated 29 February and 30 November 2000 (exhs 11, 12). He examined the applicant on 9 November 1999 and 24 February 2000. Dr Byrne recorded a history similar to the history the applicant gave the Tribunal. Dr Byrne expressed the opinion that the applicant had a ". . . naturally dependent personality style" (exh 11) and that she was emotionally vulnerable when she joined the Navy, displaying character traits associated with borderline personality disorder. He stated, ". . . it is clear that her Navy services caused significant deterioration in her mental health" [emphasis added] (exh 11). Dr Byrne diagnosed the applicant as suffering a major depressive disorder and ". . . now severe Borderline Personality Disorder" (exh 11). When asked to list the causes of the applicant's condition he stated that, having an alcoholic father, intervening in family arguments and being sexually abused as a child created significant hurdles for the applicant's normal growth and development. He also expressed the opinion that the AIDS episode caused the applicant to develop a major depressive disorder and that her emotional problems were further exacerbated by ongoing harassment from co-workers in the Navy. Dr Byrne stated that the applicant's condition fell within the diagnosis of depressive disorder in SoP Instrument Nº 59 of 1998, although in 1997, when she began to experience hypomanic episodes, they may signal the development of a bipolar disorder. When asked one of the issues the Tribunal must determine, whether the applicant's naval service prior to 7 April 1994 satisfied any of the causal factors in paragraph 5 of Instrument Nº 59 of 1998, the SoP apparently considered by the VRB, Dr Byrne responded, "Yes" and pointed to the AIDS episode which, in his opinion, constituted a severe psychosocial stressor. He also considers that there has been a clinical worsening of the applicant's borderline personality disorder.
In his later report dated 30 November 2000 Dr Byrne said that the applicant's statement that she had not remembered the AIDS episode until five years later suggested to him that the event was far less traumatic for her than she had originally reported to him. Her greater concern seemed to be that, if somebody else raised the episode, it distressed her. Having been provided with additional material by the respondent, including advice that the applicant could have availed herself of a 12-month deferment of her sea posting, Dr Byrne stated that the effect on the applicant of organising child care when she went to sea could not be as she had previously contended. Dr Byrne noted that the applicant had attended Dr Martin on 7 March 1996 ". . . to talk about an incident that happened eight years ago that has been playing on her mind over the past few weeks" [existing emphasis] (exh 12). In response to a question by Mr Rudge, whether the circumstances of the applicant's defence service satisfied factor 1(a) or 1(b) of SoP Instrument Nº 144 of 1995 concerning Personality Disorder, Dr Byrne answered, "No". Nor, in his opinion, did she satisfy factor 5(a) under SoP Instrument Nº 129 of 1996 concerning Bipolar Disorder as there was no indication of a severe psychosocial stressor within six months before her symptoms emerged. These are matters which the Tribunal must decide. When asked to comment on whether the applicant's psychiatric condition came within the definition of depressive disorder under SoP Instrument Nº 66 of 1996 concerning Depressive Disorder, Dr Byrne answered, "No", as the applicant now had a history of several documented manic episodes and he assumed that the question referred to her current psychiatric diagnosis. Dr Byrne concluded that the applicant was suffering borderline personality disorder before 1998.
Ms Booth was a Defence social worker. She first met the applicant in July 1994 when the applicant returned to Victoria from New South Wales following detoxification and participation in the rehabilitation programme. Ms Booth stated that their first consultation was mainly to do with parenting issues. She described the applicant as being distressed and she obtained a history that the applicant had been unhappy in the galley for some time. She had an aversion to her work and the workplace. The applicant told Ms Booth that she had disliked being in the galley in HMAS Canberra because of the pressure and confined spaces. She felt that she could not cope and Ms Booth became involved in her attempts to transfer to the Writers' Branch. The applicant made 3 attempts over a 10-month period to transfer to the Writers' Branch before obtaining approval on 17 August 1995. Ms Booth recorded that the applicant reacted with anger, anxiety and despair when the transfer was initially rejected. The applicant expressed concern to Ms Booth about harassment in the galley, rude comments about her appearance and the time she had off work. Ms Booth understood that the applicant had been badly affected by alcohol during her posting in HMAS Canberra, but she was not made aware of any incidents before 1994 which affected the applicant in the Navy.
Ms Booth again saw the applicant professionally in October 1997 when the applicant had another partner and she was having difficulty getting him recognised as a "de facto". She was going to lose her Navy accommodation and she was depressed by this. Ms Booth reported that the applicant attempted suicide and she was admitted to hospital at HMAS Cerberus and later to Beleura Private Hospital where she underwent shock treatment. The applicant saw Ms Booth following discharge from the Navy as she was distressed by the manner in which it was done.
It was Ms Booth's understanding that the applicant relied on her mother a lot and her family generally, and it appeared to Ms Booth that she always seemed happy to go home. Ms Booth had not been given any history of family abuse although she recalled the applicant stating that she started drinking when she was young by draining the dregs of glasses at home after her parents entertained. The Tribunal had Ms Booth's clinical notes before it and the Tribunal observes that, in the history Ms Booth obtained at the first consultation in July 1994, she recorded, "Underlying problem – she was abused by father as a child" (exh I). It is apparent from Ms Booth's notes made during 1994 and 1995 that the relationship between the applicant and her son was a major issue for the applicant. In a report she wrote on 16 June 1995, Ms Booth recorded that, when the applicant returned from leave in late July 1994, her aversion to working in the galley and cookery in general was a huge problem for her. She was distressed by the interaction with work colleagues to the point where she could not function.
The applicant's father provided the Tribunal with a statement and gave oral evidence. It was his understanding that he got on well with his children. He described himself as having been a heavy drinker, particularly on Friday and Saturday nights. He said that there may have been some family arguments. In response to questions by Mr Rudge he said that he would have drunk 2 bottles of beers on most days and 8 or 10 pots on a Friday and Saturday night. He recalled offering the applicant's son alcohol when her son was 4 or 5 years, and being told by the applicant ". . . don't start that, Dad". Asked whether this response indicated that he had offered the applicant alcohol as a child, he responded, ". . . well most fathers do I think", although he thought that it was probably his sons he had offered alcohol to. He denied that he constantly put down the applicant. He could not recall the applicant drinking alcohol in her final years of schooling before she joined the Navy.
The Tribunal had before it a statement by the applicant's mother, who also gave oral evidence. She described her daughter as a happy outgoing child with lots of friends who participated in sport and local clubs. She stated that, if the applicant had been drinking excessively as an adolescent, she had hidden it from her. The first time the applicant's mother was aware that she was drinking alcohol was when the applicant was admitted to the rehabilitation programme. The applicant's mother said that the applicant had tried to go on diets as a teenager but she did not think that she was excessive about it. When the applicant joined the Navy her mother saw her quite a few times, but contact lessened when the applicant moved to HMAS Kuttabul, although her mother made trips to Sydney to see her during school holidays. It was her mother's opinion that, after the applicant had been in HMAS Kuttabul for a while, she "seemed different" and her mother thought that she was not happy. She did recall that the applicant had an image problem before she joined the Navy.
The Tribunal had before it two statements from a school friend of the applicant's, who also gave oral evidence to the Tribunal by telephone (exh G). The friend described the applicant as a
. . . "happy-go-lucky" individual and nothing seemed to faze her. She was a leader and we all looked up to her. She had no pressures or stress and I envied her happy life. We were close friends who confided in each other. She never mentioned any problems with her home life. Her family was a functional, happy Aussie family and [VZR]'s parents were good to her.
The friend said that she did not see any indication that the applicant's father was a heavy drinker when she visited the applicant's home. She told the Tribunal that the applicant never drank alcohol in her teenage years while she was around. She saw her every second or third weekend, as well as at school during the week. It was her recollection that their group of friends did not consume alcohol.
Another cook in the galley at HMAS Kuttabul gave evidence to the Tribunal by telephone. The Tribunal also had her statement before it (exh N). She stated that she first met the applicant in the late-1980s at HMAS Kuttabul and that later she had shared a flat with her. There were about half a dozen women in the galley. She did not agree with the petty officer's recollection that everybody seemed to get along quite well in the galley. She described the conditions as "appalling", and said that both the applicant and she were subjected to constant harassment and abuse. It was her experience that the males in the galley were aggressive and "out of control". She gave an example of the abuse to which they were subjected:
. . . One of their favourite tricks was to put tomato sauce on their hands to wipe the sauce on our bottoms without us realising it. It would then look as if we had our periods and there had been an overflow. We would walk around looking as if we had blood on our clothes until someone was kind enough to tell us. The guys thought this was very funny. It was acutely embarrassing for [the applicant] and I.
Another thing they would habitually do would be to throw pots at us if they thought that we had not cleaned them properly. They also used to throw knives down on the benches in order to frighten us. The verbal abuse was also shocking. They would abuse us for the slightest thing. The verbal abuse was constant and extremely distressing.
I also recall that there was a bloke who found it amusing to flop his penis on the table. I cannot remember his name but I remember seeing it and being very disgusted.
I also recall that [the applicant] had to put up with a lot of harassment because of her size and the size of her breasts. This was extremely distressing to her.
. . . (exh N)
The cook denied Mr Rudge's suggestion that the women "gave as good as they got" in the galley, although she conceded that the women may have made joking comments about the men on the odd occasion. Some of the humour may have been risque. She said that she had also found it difficult to find someone who would work around Navy hours to take care of her children when she was based in HMAS Harman. It was the cook's recollection that the applicant was not prone to getting drunk when they served together in HMAS Kuttabul. The cook decided to share a flat with the applicant because she was going through a divorce at the time and she was obliged to vacate her naval house. The cook said she thought she reported the harassment, described above, to her petty officer, but the petty officer was a drinking partner of the men in the galley. It was the cook's observation that the applicant found what was happening in the galley extremely distressing.
Another sailor, who enlisted in the Navy in 1989 as a storeman and later transferred to the Medical Branch, provided a written statement to the Tribunal and she also gave oral evidence by telephone. She first met the applicant during the applicant's hospitalisation in 1994. She stated that some time after the applicant had been discharged from hospital she told her about her experiences in the Navy, in particular the AIDS episode. She did not relate any family history to this witness. The Tribunal is satisfied that much of the witness's statement and evidence is surmise based on what she has been told by others.
The Tribunal had before it reports from Dr C. Moore and Dr N. Strauss, psychiatrists, who examined the applicant for medico-legal purposes. They both gave oral evidence to the Tribunal. Dr Moore saw the applicant on 31 May 2000. He observed that the applicant was depressed on the day he saw her, although for the majority of the time she was in a hypomanic state. There were features of bipolar affective disorder and post traumatic stress disorder. Dr Moore concluded that, during the time the applicant was in HMAS Kuttabul she developed symptoms of chronic post traumatic stress disorder which has been the trigger for the subsequently evolved chronic bipolar affective disorder. When giving oral evidence to the Tribunal Dr Moore said that the applicant's post traumatic stress disorder arose as a result of her being harassed by one of the cooks in the Supply Branch of whom she was afraid. When asked to comment on Dr R's evidence with respect to the age at which a diagnosis of borderline personality disorder is normally made, Dr Moore said that to state that it should be diagnosed by the age of 18 years was conservative and he suggested that a diagnosis would generally be made by 16 years of age in which case the applicant should not have passed the psychological test for entry into the Navy. In his opinion a personality disorder is an enduring lifelong trait.
Dr Moore conceded that Dr R had obtained a more concise history than him with respect to the applicant's sexual encounter which occurred when she was a child. He agreed with Mr Rudge that sexual abuse may have an adverse effect on personality and development, but he said that it was not inevitable. The applicant's promiscuity was not necessarily the result of a personality disorder. The history the applicant had given Dr R of sexual promiscuity pointed to a swing from a depressive phase in her mood to a hypomanic phase. The applicant's evidence that she missed her partner when he went to sea was against a diagnosis of personality disorder. He agreed that the applicant's relationships are poor. Dr Moore said that he thought "the crunch time" came for the applicant when she and her partner were on sea duties which "created major problems". When Mr Rudge raised the evidence with respect to the applicant's childhood, Dr Moore noted that depressed people tell stories which reflect their mood. In his opinion they reflect upon sad things. Dr Moore was surprised that, during the number of psychiatric examinations the applicant had had, she had not pointed to the AIDS episode as being traumatic for her until more recently. It was Dr Moore's understanding that the AIDS episode did not affect her so much as the harassment which increased after the AIDS episode became known. The applicant had told Dr Moore that she raised harassment issues in the galley with her superiors, but she was told that the Navy was a boy's club and that she had better get used to it.
In written reports to the Tribunal Dr Strauss, who examined the applicant on 24 February 2000, recorded that he was advised by the applicant that three aspects of her naval service contributed to the development of her psychiatric problems — the AIDS episode which had ruined her life because she has remained convinced that she has AIDS, the bastardisation and harassment she experienced in the Navy, and the difficulties for her in transferring out of the Supply Branch into the Writers' Branch. Dr Strauss had a number of other reports with respect to the applicant before him and he expressed the opinion that borderline personality disorder is the main key to understanding the applicant. The applicant had indicated to Dr Strauss that some of the information she had given to doctors in the Navy with respect to her developmental history was incorrect, but she accepted that she had had problems with her father, brothers and that there had been some "sexual interference" when she was a child (exh 1). In forming the opinion that the applicant suffers from a borderline personality disorder, Dr Strauss stated that the applicant satisfied the following criteria:
A pattern or unstable and intense interpersonal relationships characterised by alternating between extremes of idealisation and devaluation.
Identity disturbance involving markedly and persistently unstable self-image or sense of self.
Impulsivity in at least two areas that are potentially self-damaging such as sex, substance abuse or binge eating.
Recurrent suicidal behaviour, gestures or threats or self-mutilating behaviour.
Affective instability due to a marked reactivity of mood.
Chronic feelings of emptiness.
Inappropriate, intense anger or difficulty controlling anger.
Transient, stress related paranoid ideation or severe dissociative symptoms. (exh 1)
Dr Strauss gained the impression that the applicant's childhood was never very good; that she lacked confidence and that she had low self-esteem at school. That is not the oral evidence the applicant gave the Tribunal, nor the evidence of the applicant's school friend. However, Dr Strauss considers that there is a strong suggestion that the applicant had abused alcohol from a young age and also that she had significant problems with eating. He noted that the applicant had not complained to anybody about the distress she felt during her early years in the Navy and her reflections on how she was treated with respect to the AIDS episode. He also noted that she had later attended the 21st birthday party of the other person involved in the AIDS episode. Dr Strauss stated that there was no evidence to support her claim that she continues to worry that she may have AIDS. Although accepting that there may be some basis for her claims with respect to victimisation and harassment, he believes her claims are now influenced by her underlying psychiatric problems "that have been with her for many years". He also noted that, although there were delays for her in moving from the Supply Branch to the Writers' Branch, she had not been working in the Supply Branch after her return to HMAS Cerberus. The Tribunal notes the applicant's evidence that she was working in the galley at HMAS Cerberus prior to her admission to the Alfred Hospital (see paragraph 9 above). Dr Strauss said that he does not think that the applicant's service with the Navy caused her borderline personality disorder. In his second report dated 24 October 2000 Dr Strauss commented on SoP Instrument Nº 144 of 1995 as amended by Instrument Nº 14 of 1997. He expressed his opinion about the issue which the Tribunal must decide, stating that he does not believe the applicant suffered from a catastrophic experience preceding an enduring personality change, but rather it is his opinion that her personality problems are longstanding. Nor could it be said, in his opinion, that she had not been able to obtain adequate treatment.
When giving oral evidence to the Tribunal Dr Strauss said that he thought at times the applicant had not been completely truthful. He noted that Dr R had originally taken a history which convinced her that the applicant had a personality disorder due to developmental experiences and that the applicant had later given a different account of events. Dr Strauss said that, whether the applicant's problems in the Navy were real or whether they were the result of her perception of circumstances, was questionable. He went on to note that the applicant contends she had a number of problems in the Navy which no one ever found out about over a number of years. Dr Strauss agreed with Mr Jewell that a borderline personality disorder would probably show up by the age of 18 years. He conceded that, if the applicant had been happy during her childhood and outgoing, and if she then had terrible experiences in the Navy and became ill, he would change his diagnosis. Dr Strauss said that the applicant's condition had started in adulthood and, in his opinion, it continues. Alcoholism is more likely to be the product of a depressive disorder rather than being indicative of a personality disorder. The fact that the applicant has drunk to excess, has had eating problems, has been depressed and that she has been promiscuous point to her having a borderline personality disorder. Dr Strauss had not been provided with any history of hypomania and he noted that there is often a family history of bipolar affected disorder.
The Tribunal had before it some further exhibits, including a statement from one of the cooks who served with the applicant in HMAS Kuttabul. They were the same rank and he expressed surprise that the applicant contended that he intimidated her (exh 5). There is also a statement by a lieutenant commander of the Naval Investigative Service, dated 27 August 2000. He advised that he had perused the Navy file relating to a 1988 investigation into a serviceman in the Supply Branch, whom the applicant understood had AIDS. The lieutenant commander reported that there was no mention of AIDS in the file, nor of the applicant. The applicant's personal file had also been perused and no documentation with respect to her contentions concerning AIDS was located. The Tribunal was provided with a copy of the naval psychological records with respect to the applicant which included a report by the psychologist, Dr Martin (see paragraph 24 above), who had counselled the applicant in 1996 (exh 7). It is noted that the applicant requested the appointment. The applicant reported feeling irritable and angry, and "overwhelming feelings of having failed" (exh 7). She had noticed one month earlier that something was wrong.
The first report in the applicant's psychological record is dated 10 June 1986 when she applied to enter the Navy. She described worries about not getting a job and she is described as having a happy smiling interview manner, being bright and bubbly, ". . . there do not appear to be any psychological anomalies evident" (exh 7). It was noted that she seemed suited to her category choice. There is no further report on her file until April 1994 when a specialist referral was sought because of "anxiety/depression". By then, the applicant was describing drinking, loneliness, binge eating, and being "very scared to return to work tomorrow". On 7 March 1996 she apparently referred herself to talk about the AIDS episode and drugs. She told Dr Martin that she was called in to assist with the investigation into drugs and AIDS in the Navy. This contention is not borne out by the other information provided to the Tribunal. She told Dr Martin she was concerned because there had been a lot of rumours and she had recently found out that "it was all false" (exh 7). She was angry at how she had been treated. She also referred to pervasive and continual harassment in the Navy and she wanted this to be recognised. She was worried because past issues had resurfaced and that she may relapse into depression again. She reported putting on a happy face to the outside world while feeling numb inside. The applicant reported that she had trouble trusting others. Dr Martin concluded that the applicant put on a façade to protect herself from hurt and rejection, but in doing so she lost her identity.
Dr Martin recorded an opinion that the applicant was a very open and honest person who was feeling confused, alone and worried. The Tribunal has some difficulty in accepting Dr Martin's opinion, as at a consultation with another practitioner one week later, the applicant described her family background in terms similar to those she used when first consulting Dr R and which she now contends was an incorrect history which she provided to enable her to complete her rehabilitation programme satisfactorily and at the same time to enable her to please the Navy. The psychological records also note that in 1995 the applicant had weighed 105kgs, and that she weighed 62kgs in March 1996.
There is a relevant outpatient record that the applicant "grew up in a house in which she had no control and she has reacted against this with over control". By 9 October 1998, Dr Martin expressed the opinion that the applicant was clinically depressed. She had been provided with no history of manic episodes. It appears that there was a crisis in October 1998 when the applicant's de facto husband "asked for time out for a few days".
In a written submission Mr Jewell invited the Tribunal to find that the applicant's childhood experiences were as she described them to Dr Moore, eventually to Dr R and to the Tribunal, and that her need to remain in the Navy had led her, when she underwent detoxification and rehabilitation, to give a false impression of her experiences before enlistment. He also put to the Tribunal that the applicant agreed that it had been appropriate for her to undergo AIDS testing in 1988, but he put to the Tribunal that it was the manner in which the applicant was confronted with the information that she had AIDS which led her to fear for her life and experience the "inevitability of premature death". Mr Jewell invited that Tribunal to accept the diagnosis made by Dr Moore in light of Dr Moore's experience in treating naval personnel. He further invited the Tribunal to reject the opinions of Dr Strauss and Dr Byrne that the applicant suffers borderline personality disorder, which they had made based on a childhood history. He also drew attention to Dr R's opinion that the applicant does not suffer a personality disorder and he put to the Tribunal that Dr R's opinion should be persuasive, as she is the psychiatrist who has treated the applicant over a number of years. Mr Jewell pointed to the histories obtained by Drs Byrne, Strauss and Moore of episodes of hypomania as supporting a diagnosis of bipolar disorder. As well as relying on his written submission, Mr Jewell noted at the hearing that the applicant and the petty officer had only served together for fairly short periods and that the issue of child minding for the applicant was a stressor for her.
Mr Rudge submitted that the applicant suffers from a personality disorder. He relied on the evidence of Dr Strauss, Dr Byrne and records from the Alfred Hospital during August and September 1994. He noted that the applicant's admission to the Alfred Hospital had provided an extensive opportunity for medical personnel to examine her. He also noted that Dr R recorded on 4 August 1994 that the applicant had features of personality disturbance, complicated by a major depressive episode and bulimia. Mr Rudge drew attention to Dr Strauss's finding that five of the diagnostic criteria for personality disorder are satisfied and he said that there was further evidence before the Tribunal of suicidal behaviour, gestures or threats. Mr Rudge reminded the Tribunal that the applicant's defence service ceased on 7 April 1994. However, it is open to the Tribunal to find that any disease from which the applicant suffers occurred after that date but may still have arisen out of or be attributable to her defence service (subsection 70(5) of Veterans' Entitlements Act 1986 ("the Act").
The Tribunal finds that it is probable that the applicant was drinking alcohol before she entered the Navy but that she was not drinking to the extent she described during detoxification and the rehabilitation programme and to some medical practitioners. She provided a history of drinking alcohol during her secondary education to practitioners on a number of occasions. The Tribunal accepts the evidence of her parents as being an accurate account of their recollection of the applicant before she joined the Navy, although the Tribunal is not persuaded that they were always aware of what the applicant was doing during the later years of her secondary education, in light of the history the applicant provided to Dr R that she was ". . . sneaking around, lying to my family" (paragraph 22 above), even if she has since exaggerated what occurred at that time. The applicant ticked the box on the entry Medical History Questionnaire that she did not drink alcohol. The Tribunal is satisfied the applicant has adopted the attitude that those in authority should be told what they want to hear. This is borne out by her evidence that she told the Navy what it wanted to hear.
The Tribunal accepts Dr Byrne's opinion that the applicant had a dependent personality style and that her "happy-go-lucky" presentation during her secondary education masked her insecurity and need to be liked. The Tribunal further finds that the applicant's relationship with her father was difficult over a considerable period. She provided a history of arguments and a lack of affection to a number of practitioners. She also pointed to her brothers teasing her. She recalls a sexual encounter with a cousin which the Tribunal is satisfied concerned her. The Tribunal finds that on entry to the Navy the applicant had traits associated with a borderline personality disorder. The Tribunal further finds that it was the applicant's need to be liked which led her to start to drink heavily after she joined the Navy and that she chose to join other cooks in this pursuit to prove what a good drinker she was.
The Tribunal must decide what disease the applicant was suffering when her claim was determined by the Repatriation Commission on 22 June 1998. The applicant lodged a claim concerning depressive disorder and it was that disorder which was considered by the Repatriation Commission and the VRB. However, that is not the disease raised by either Mr Jewell or Mr Rudge before the Tribunal. The Tribunal finds that the applicant's psychological assessment was normal on re-engagement in June 1992 (paragraph 14 above), but that, following a deterioration in her relationship with her partner, particularly after he was posted to HMAS Perth and went to sea and she was left to cope with her son alone, she became depressed. The evidence points to a considerable increase in the applicant's weight during 1993. She was drinking to excess, but her medical records point to family matters rather than her work in the galley as being the source of her stress. The applicant stated that she drank because she was depressed. However in 1994 it was her choice to go to sea in HMAS Canberra.
The Tribunal relies on the opinions of the medical practitioners who examined the applicant at that time. Dr Wurth diagnosed major depression, noting family issues; Dr R also diagnosed depression in 1994. References to a troubled identity and borderline personality disorder emerge and Dr R refers to longstanding low self-esteem, although she told the Tribunal that her opinion at that time was based on a history she no longer considers accurate. The Tribunal finds that, although exaggerated, the original history provided by the applicant to practitioners contains elements of truth. The applicant went through a period of detoxification and rehabilitation during which she stated that circumstances during her childhood and teenage years had affected her. It has only been since the applicant has lodged her claim for pension that she has provided a different history with respect to her childhood, although she explains this by saying that she could not trust Dr R until Dr R ceased to be a consulting psychiatrist for the Navy.
After April 1994, the applicant's psychological condition fluctuated. However, any contribution by her service in the Navy to her condition after April 1994 is not relevant to the Tribunal's considerations. The Tribunal is satisfied that by the time the delegate of the Repatriation Commission considered the matter, the applicant was suffering a bipolar disorder. She had experienced manic episodes and that diagnosis is recorded in the clinical notes from the general practice she attended when residing with her parents. Dr Newton diagnosed bipolar disorder, as had Dr Moore. As already stated, the Tribunal is also satisfied that the applicant had a personality disorder as found by Dr Strauss, Dr Byrne and Dr R, although Dr R has since expressed some doubts about this diagnosis.
Mr Rudge did not support a finding that the applicant suffers post traumatic stress disorder and the Tribunal must agree with him that she does not meet the description of that disorder in the SoP as the Tribunal finds that she was not exposed to a traumatic event during the period of her service the Tribunal must consider. She did not experience, witness, nor was she confronted with an event or events which threatened life or serious injury, or threaten her physical integrity of self or of others. She did not give evidence of a response involving intense fear, helplessness or horror. She may now have recurrent and intrusive distressing recollections of some events which occurred during service, but this does not satisfy the definition of post traumatic stress disorder under the SoP.
Having found that the applicant was suffering bipolar disorder and personality disorder, the Tribunal turns to consider whether those diseases can be related to her defence service. The Tribunal must, to a large extent, rely on the applicant's story as to what she was experiencing during defence service as she sought no help with respect to any symptoms of any disease until 1993, although she may have made some complaints about the behaviour of male cooks to her petty officer. The Tribunal accepts that some postings were very difficult for women in the Navy during the late 1980s and early 1990s, particularly working in the galley in confined spaces, as pointed to by the evidence of Dr Moore, and that there was teasing, aggressive behaviour and verbal abuse of female cooks by male cooks. The applicant perceived that complaining would not resolve any problems which arose for her. Her story of a male cook's objectionable behaviour was verified by the cook who saw it and the petty officer who had heard of it. The Tribunal finds however that the harassment which occurred did not result in the applicant developing any psychiatric condition. Her psychological state was assessed as normal in June 1992. It was not until some years later that she raised with medical practitioners her reaction to the way she was told that it was necessary for her to undergo an AIDS test and the Tribunal is satisfied on her evidence that her distress was focussed on her fear that she may have contracted AIDS, rather than her being upset at the insensitive way the information was conveyed to her, although she has now focussed on that as well. The applicant was naturally distressed to find that information about the AIDS episode had spread around the galley next day, but the evidence does not point to the applicant showing symptoms of any disorder at that time. The Tribunal finds that much of the applicant's distress has manifested itself more recently as the applicant comes to terms with a future outside the structure of the Navy.
The applicant's first presentation to practitioners with respect to psychological symptoms was immediately after the deterioration in her de facto relationship and difficulties she had with her child and child care in 1993. It was at that time also that her weight increased markedly and that she increased her alcohol intake markedly. Before the applicant lodged her claim for pension, in May 1998, she pointed to factors which occurred within the family setting as contributing to her problems. The evidence she gave the Tribunal focussed on the Navy as the source of her problems and this change in her evidence has caused the Tribunal concern about the credibility of her oral evidence. Ms Booth saw the applicant as focussing on relationships as the cause of her distress.
The Tribunal is satisfied that the applicant's bipolar disorder is not connected with the circumstances of her service. Her bipolar disorder was not diagnosed until 1997 and the applicant did not experience a severe psychosocial stressor during service six months before that disorder was diagnosed. The time of the clinical onset, when the applicant's disorder was diagnosed, of necessity rules out any stressor occurring during the period of service the Tribunal must consider. The Tribunal rejects Mr Jewell's contention that the clinical onset of the applicant's bipolar disorder occurred shortly after the AIDS episode. There is no evidence (apart from the applicant's present reaction to what occurred) to support a finding that a medical practitioner would have diagnosed the disorder at that time. The applicant has not suggested that she presented with symptoms which would have enabled that diagnosis to be made shortly after she experienced the AIDS episode. There is no suggestion in the evidence before the Tribunal that the applicant took sick leave. Alternatively, Mr Jewell suggested that the clinical onset of the applicant's bipolar disorder may have occurred in March 1993, when the applicant said that her drinking increased markedly. However, the evidence before the Tribunal with respect to that time points to the applicant being concerned about personal affairs rather than Navy matters. Again, she had not experienced any manic episodes. The applicant suffered substance abuse involving alcohol, but the Tribunal finds that she drank because of the difficulties for her in her personal life and those factors are not connected with her service, although they do include the distress she felt at missing her child when she [the applicant] sailed in HMAS Canberra, which may have been something she did not anticipate as she had the option to delay her sea posting for 12 months. In making these findings the Tribunal is not denying that the applicant has been through most difficult times and that she continues to need assistance in coping with the loss of the Navy structure.
The Tribunal finds that the applicant had a personality disorder prior to 1994 but, turning to the factors in the relevant SoP, the Tribunal finds that no factors exist which, on the balance of probabilities, would connect the applicant's personality disorder with the circumstances of her service. The evidence does not point to her undergoing an enduring personality change as defined in the SoP (see paragraph 4 above) immediately after any of the experiences she has related to the Tribunal as causing her personality disorder. On re-engagement, in mid-1992, her psychiatric assessment was "normal". Her drinking began to increase in late 1993 and at the same time her weight increased markedly. Her personal relationships became more difficult for her to cope with and she was vulnerable to these matters as a result of her childhood experiences. Clinical management of the applicant's psychological disorders was available to the applicant although the diagnosis and treatment provided to the applicant in 1994 was for depression, the condition then diagnosed by a number of medical practitioners.
Even if the applicant had not developed bipolar disorder by the time her claim was considered by the Repatriation Commission, the Tribunal would not be satisfied that the applicant's depression was connected with the circumstances of her relevant service. The stressors the applicant experienced were connected with her personal circumstances. The information that circulated in the galley about the AIDS episode occurred a number of years before the clinical onset of her depression and the evidence does not support a finding that the applicant experienced a "severe psychosocial stressor" as defined in Instrument Nº 59 of 1998 within the period provided under the SoP.
It is for these reasons the decision under review will be affirmed.
I certify that the sixty-three (63) preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H. E. Hallowes, Senior Member
Mr A. Argent, Member
Dr C. Re, MemberSigned: Catherine Thomas...............................
Personal AssistantDate/s of Hearing 4 December 2000, 7 and 8 February 2001
and 22 March 2001
Date of Decision 15 June 2001
Counsel for the Applicant Mr P. Jewell
Solicitor for the Applicant Ryan Carlisle Thomas
Solicitor for the Respondent Mr K. Rudge, departmental advocate
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