Walker and Military Rehabilitation and Compensation Commission (Compensation)

[2017] AATA 9

Walker and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 9 (9 January 2017)

Division	VETERANS’ APPEALS DIVISION
File Number	2015/0456
Re	Kell Walker
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Senior Member J Sosso
Date	9 January 2017
Place	Brisbane

The Tribunal affirms the decision under review.

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Senior Member J Sosso

CATCHWORDS

VETERANS AFFAIRS – entitlements – whether Commission must accept liability – claimed conditions head/spinal injury – post traumatic stress disorder (PTSD)  whether Applicant suffers from claimed conditions – where it is uncertain when claimed conditions commenced – where little evidence of triggering event  decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 s 124

Commonwealth Employees’ Compensation Act 1930 s 16

CASES

Lord Advocate v Blantyre (1879) 4 AC 770
Re Muras and Department of Defence (1998) 52 ALD 579
Walker v Secretary, Department of Social Security (1993) 31 ALD 45
Walker v Secretary, Department of Social Security (1995) 36 ALD 513

Walker v Telstra Corporation [2007] FCA 419

REASONS FOR DECISION

Senior Member J Sosso

9 January 2017

INTRODUCTION

1. On 14 February 2014 Captain Kell Walker (the Applicant), who was previously known as Kelvin Noel Walker, made a claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) – Exhibit 1 T5 p.31.

2. The injury/disease claimed by the Applicant was “PTSD Spinal Head” and the cause of the injury/disease was “assulted for 3 days in a row” – Exhibit 1 T5 pp.3435.

3. The Applicant enlisted in the Royal Australian Navy (RAN) on 5 April 1964 and was discharged on 28 August 1964. The injuries claimed were said to arise from beatings inflicted on the Applicant when he was incarcerated at HMAS Cerberus in 1964.

4. The Applicant’s claim was rejected by the Military Rehabilitation and Compensation Commission (the Respondent) on 10 July 2014 – Exhibit 1 T15 p.69.

5. The Applicant sought an internal review of this decision, and on 19 January 2015 the relevant delegate of the Respondent affirmed the determination of 10 July 2014 – Exhibit 1 T17 p.76.

6. The Applicant applied under s 29(1) of the Administrative Appeals Tribunal Act 1975 for a review of the decision of 19 January 2015.

   BACKGROUND

7. There are numerous disputed facts in this matter. However, some matters are uncontested and can be outlined below.

8. The Applicant was born on 5 June 1948 as Kelvin John Walker – Exhibit 1 T18 p.86. He was born in Tasmania and his parents were engaged in primary industry.  He was one of four children. The family moved to New South Wales while he was of primary school age, and subsequently to Victoria – Exhibit 1 T4 p.23.

9. On 5 April 1964 he enlisted with the RAN as a Junior Recruit.  He was discharged from the RAN on 28 August 1964 – Exhibit 1 T18 p.86.

10. The Applicant’s ‘Ratings Record of Service Card’  has an entry dated 24 August 1964 in which the following record was made (Exhibit 1 T18 p.88):

    “Rating has this day wilfully disobeyed his training instructor and used abusive language and threatened to assault his Divisional Officer. Rating has committed a series of offences involving slackness and assault of his fellows and was about to be placed under captain warning. Recommended discharge SNLR forthwith.”

11. The Applicant’s account of what occurred is as follows (Exhibit 1 T4 p.24):

    “During his time in the Navy he ended up being singled out for special treatment (after he was caught out with a couple of pranks), which went on for several months and one day whilst on parade he was called out for misbehaviour. At the time it was not Walker who made the remarks but a recruit standing next to him. Walker’s reply was to tell the Officer, Leftenant (sic) Spencer to ‘Get Fucked’.

    Walker was ordered back to the barracks where he was taken into custody and placed in a cell 8 x 4 feet with no light, although there was a light 3 feet above the door.”

12. In his Entry History Questionnaire, the Applicant, who was then aged 15, answered in the negative to almost all questions seeking information whether he had then, or previously, any medical ailments. He indicated that he had been hospitalised in the past and had an operation, and the form indicates that this was for tonsillitis –Exhibit 1 T19 pp. 9596.

13. The day prior to the Applicant’s departure from the RAN he was medically examined. The Medical Examination Record confirms that the Applicant was at that time in apparent sound physical health, with all body parts/functions normal, including head, spine, nervous system and anus, and he  was rated as Category ‘A’   Exhibit 1 T19 pp. 9192.

14. After leaving the RAN the Applicant was employed in a range of different enterprises.  Included amongst those various jobs were times as an abalone diver (for 18 months), an offshore deep diver (in 1968) and various positions in the shipping industry. In an unsigned and undated statement the Applicant states (Exhibit 1 T4 p.26):

    “As a deep sea diver, Walker was always on all types of ships and studied for his Foreign Going Master’s certificate and at any time would if possible spend time standing watch on the bridge. He had his first command in 1981.

    During his life he have had a colourful past, never been able to keep a job for more than 3 months, the longest being 2 (Port Emergency Service) years, mostly less than that, with time in prisons.”

15. The Applicant claims that during his working life he has received three commendations for saving three lives.  As a diver he attended, it is claimed, both the West Gate Bridge collapse in 1970 and the Tasman Bridge disaster in 1975 – Exhibit 1 T4 pp. 2627.

16. In 1968 the Applicant claims that he was required to have a long bone X ray when he sought employment as an offshore deep diver. The Applicant states (Exhibit 1 T4 p. 26):

    “The X ray showed that Walker had 2 broken bones in his lower spine. These were the 2 & 3 transverse process and were separated and were perpendicular to the horizontal broken bones. After demonstrating that he could do basic exercisers (sic) he was cleared to be a deep sea diver as he had told the Doctor that it was no bother at that time.

    The back pain and headaches continued: with pain killers and rest he was able to continue as a diver at all levels of diving. He also qualified as a hyperbaric paramedic.”

17. At the hearing the Applicant stated that he had no documentary evidence of the 1968 medical tests and did not have any of the X rays that were taken.

18. The Applicant obtained qualifications overseas and became a Master Mariner. He served in the Merchant Navy from approximately 1972 and rose to the rank of Captain. He ceased working in the Merchant Navy approximately 20 years ago – Exhibit 3 p.3. In addition to his Master Mariner qualifications, the Applicant has both a LLB (1997) and LLM (2013).

19. The Applicant informed Dr Christopher Danesi, Consultant Psychiatrist, that from 1972 he worked for Blackwater as a diver, and was working in Vietnam with the CIA – Exhibit 11 p.1. The Applicant confirmed this at the hearing,

20. The Applicant served time in a custodial institution in Queensland from 1989. It is a matter of public record that he was prosecuted in the Southport Magistrates Court for making a false social security claim and was sentenced on 12 April 1989 to 21 months gaol on counts of imposition against the Commonwealth – Walker v Secretary, Department of Social Security (1993) 31 ALD 45 and Walker v Secretary, Department of Social Security (1995) 36 ALD 513 at 527. On 30 July 1990 he was also convicted of a separate offence of defrauding the Queensland Workers’ Compensation Board and sentenced to five and a half years imprisonment Walker v Secretary, Department of Social Security (1993) 31 ALD 45 at 47.

21. The relevance of both of these terms of imprisonment is explained below.

22. Apart from back pain and headaches, the Applicant’s medical problems began in 1978/79 when he entered his motor vehicle to drive to the Airport. He suffered a panic attack and developed light sensitivity. He was unable to travel by aeroplane for ten years – Exhibit 1 T4 p.27. He also started suffering chest pains and saw a psychiatrist at the Frankstown Hospital. He was treated with Parnate (an antidepressant), Valium and Panadine Forte for 18 months without appreciable success. He did not inform the psychiatrist about the alleged incident in 1964 at HMAS Cerberus – Exhibit 3 p.3.

23. By 1988 his condition worsened and he again sought the services of a psychiatrist who prescribed medicine that enabled him to sleep 12 hours a day.

24. In 1998 the Applicant was seen by Dr Maxwell Katz, consultant psychiatrist, at Southport. Dr Katz diagnosed the Applicant as follows (Exhibit 8 p.1):

    “Kelvin presented with symptoms of anxiety and depression including mood instability, panic feelings, irritability, hypersensitivity, sleep disturbance and hypochondriacal reoccupations associated with phobic reactivity and fearfulness including fears of dying and fears of illness which have been more pronounced in the setting of increasing levels of stress and which have been associated at times with globally depressed mood with loss of energy, drive, motivation and interest.”

25. By 2002 the Applicant began having suicidal thoughts and was prescribed Prosac. He was referred to a psychiatrist who prescribed Cipramil, Endep and Valium. The psychiatrist was Dr Danesi. The Valium was prescribed as he was continuing to suffer back pains and other symptoms related to spinal injuries. The Applicant states that the older he becomes the “problems worsens.” – Exhibit 1 T4 pp. 2728, Exhibit 3 p.4.

26. The Applicant then, as now, is depressed and has no energy. He continues to be unmotivated and procrastinating with decreased motivation and suffers from panic attacks – Exhibit 3 p.4. He continues to suffer from back pain requiring Panadeine Forte and Targin, sometimes using a walking stick.

27. The Applicant has been married on a number of occasions. In his unsigned statement he claims to having been married 6 times and having 13 children, including five step children – Exhibit 1 T4 p.29. He has no contact with any of his children, the last contact being with a daughter in 1998 – Exhibit 8 p.2, Exhibit 3 p.7. Moreover, apart from his current wife, the Applicant has no social life, no friends and describes himself as a loner – Exhibit 3 p.5.

    CONTENTIONS OF THE APPLICANT

28. The core of the Applicant’s case is that he was systematically beaten when he was placed in custody at HMAS Cerberus in 1964. Further, he contendeds that the savage and prolonged beating he claims he suffered resulted in both physical and psychological injuries which have had a devastating impact on his life and his relations with others.

29. It is helpful to quote in full from the Applicant’s unsigned statement which sets out his version of what occurred in 1964 while he was a Junior Recruit and immediately thereafter – Exhibit 1 T4 pp. 2425:

    “Walker was held in custody for about 7 days and during that time was subjected to constant beatings by kicking and punching around the kidneys, lower part of the spine and the back of the head. These were places that could not be seen. After 3 day of the treatment as it was called Walker started to piss blood. Walker would piss on the floor that ran out under the door. Consequentially the beatings stopped and was moved to a larger cell and was told that if he laid any complaint he would have an accident or commit suicide by hanging.  Walker believed that his life was in danger and feared that he would be killed. He thought he was a dead man. It was a traumatic experience for someone at such a young age which affected him for years and does so for most of the time..

    He had nightmares for years afterwards at 16 he had no experience in the ways of the world, coming from a small country town and was of the belief that the shore patrol could carry out their threats. He had heard that accusations of this kind actually happened to prisoners which bought memories flooding back to him causing headaches and nightmares. It would no doubt be difficult for people to understand what such traumatic events in one’s life that have on a person. At the time Walker had recently turned 16 and after a week in custody he was discharged and told his service were no longer required then escorted to his parents home as he was under age. Shortly after being discharged he went off the rails and got himself into all matters of trouble.

    Approximately after 3 weeks and the migraines and the kidneys were causing very little pain he travelled to Crib Point which is next to HMAS Cerberus he crawled through a swamp that adjoined the Naval Base and waited to get and kill Leftenant (sic) Spencer for being the cause of the special treatment handed out by the Shore Patrol. It was well known that one would have to give good reasons for the shore patrol to take such action in dependably of directions from a superior officer.

    Walker watched for Spencer for 3 weeks for his duty night rounds, until Walker found out that he was on leave.  Walker returned to the base as a visitor on 3 different occasions to catch Spencer without luck.

    Tony Tulcyzin who is known to Walker and was also in the Navy before joining before joining (sic) the Military Police can confirm that such treatment was handed out to certain prisoners.”

30. At the hearing the Applicant testified that he was beaten over 2 – 4 days and that four people from Shore Patrol were involved. He was moved from this cell to a larger cell; a six person cell which he shared with another person. He could not remember details of the person he shared the cell with. Following this he was discharged from the RAN. The Applicant says there was no court marital, and he did not appear before the commanding officer. He was simply discharged and driven to his parent’s property.

    CONTENTIONS OF THE RESPONDENT

    Issues to be addressed

31. The Respondent contends that a number of issues arise in this mater (Respondent’s Statement of  Issues, Facts and Contentions (RSIFC) para 2.1):

    (a)Does, or did, the Applicant suffer from the claimed conditions?

    (b)If so, when did the Applicant suffer from these conditions for the purpose of identifying the applicable Act?

    (c)Have the applicable notice requirements been satisfied for each condition?

    (d)If so, is the requisite test for liability under the applicable Act satisfied in relation to each condition?

    Denial of liability

32. The Respondent denies any liability to pay compensation to the Applicant for the claimed PTSD, and spinal/head conditions under s 14 of the SRC Act – RSIFC para 4.1.

    Spinal/Head Injury: liability

33. The Respondent contends there is no medical evidence to support a conclusion that the Applicant has suffered or suffers from a head injury, and, accordingly liability is rejected – RSIFC para 4.2.

34. It is contended that the Applicant suffers from a degenerative disease of the spine, which was not contributed, to any degree, by his military employment. Liability is rejected, irrespective of whether the material or significant contribution test under the SRC Act is adopted – RSIFC paras 4.34.4. The Respondent relies on the evidence of Dr Steadman.

    PTSD: liability

35. The Respondent contends that the Applicant has not suffered from a PTSD condition which has been contributed to, to any degree, by his former military employment – RSIFC paras 4.9  4.10. The Respondent relies on the evidence of Dr Varghese.

    Notice Requirements

36. The Respondent initially contended that even if the Respondent suffered spinal/head injuries in 1964 whilst engaged in military employment he failed to comply with the notice requirements of s 16 of the Commonwealth Employees’ Compensation Act 1930, which is the operative provision by virtue of s 124 of the SRC Act.

37. Section 16 imposes two requirements on a person seeking compensation.

38. First, that notice of the accident is served “as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth”.

39. Second, that the claim for compensation is made within six months from the occurrence of the accident.

40. Section 16, however, contains a qualifier, namely if the failure to serve the notice does not prejudice the Commonwealth or was occasioned by, inter alia, a reasonable cause. Likewise the second requirement of making the claim within six months is subject to the qualifier that the failure was occasioned by mistake, absence from Australia or other reasonable cause.

41. At the hearing Mr Clark, for the Respondent, formally withdrew this contention, as well as the corresponding notice contention in relation to PTSD on the basis that the Commonwealth had not been prejudiced. This concession was a very generous one. There is a considerable body of superior court and tribunal decisions on this section. As was noted in Re Muras and Department of Defence (1998) 52 ALD 579 at 582: “(t)he purpose of the notice is, of course, to enable the Commonwealth to investigate the circumstances as soon as possible after they occur.”

42. In any event, this matter proceeds on the basis that the Respondent has satisfied the notice requirements prescribed by s 16.

    CONSIDERATION

    Was the Applicant Injured in August 1964

43. The first, and threshold, issue is whether the Applicant was subjected to the prolonged physical assaults he claims in August 1964.

44. The Department of Defence previously confirmed that there were no incident, court martial findings, investigation reports or disciplinary charges recorded on the Applicant’s personnel or medical records relating to the alleged incarceration in August 1964 – Exhibit 1 T2 p.16.

45. The uncontested RAN records before the Tribunal are scant, but nevertheless indicate that the Applicant was a healthy young man when he enlisted in April 1964 and was in A grade physical health when he was discharged on 28 August 1964.

46. Mr Clark sought leave to tender a document entitled “Disciplinary Charge Sheet and Punishment Record”. The Applicant objected on the basis that the document was a fraud, or, as he later explained, a concoction. The document was admitted and marked Exhibit 5. It discloses that the Applicant was the subject of two charges on 26 June 1964, namely:

    “Was guilty of an act to the prejudice of good order and Naval Discipline in not carrying out the order of J.R.2 Murray Ian HAMMOND R.63242 of H.M.A.S. CERBERUS given by the said Junior Recruit in his capacity as Class Leader of BOURKE Division, when ordered ‘do not switch the lights out’.

    Secondly: Was guilty of act to the prejudice of good order and Naval Discipline in striking J.R.2 Murray Ian HAMMOND  R.63242 of H.M.A.S. CERBERUS’.

47. The Applicant was unable to explain why this document was a concoction, however in Submissions dated 7 December 2016 the Applicant expanded on his objection:

    “Exhibit 5. Now before the Tribunal is a forgery, for starters it is on clear white paper and not like the rest of the service records which are shadowed over the whole paper as seen on copies of microfiche. Secondly, the document claims that I appeared before the Commodore. This is like saying that the Chief Justice of the Federal or the Supreme Court for me appear before them on a Summary Charge: Consequently that a forged document is put before a Tribunal invokes the up to date laws that are set out in the section of the:”

48. The Applicant then refers to section 55 of the Defence Force Discipline Act 1982: falsifying service records, and requests that the matter be referred to the Full Court of the Federal Court.

49. I concluded at the hearing that the Charge Sheet was an original document and not a concoction, and also concluded that in the period June – August 1964 the Applicant created a disciplinary problem for the RAN. The further contentions of the Applicant add nothing new except a repetition of a very serious, but totally unsubstantiated, assertion. Exhibit 5 is a prima facie original document and there is not one scintilla of objective evidence that would cast any doubt on its authenticity.

1. The Respondent also tendered an email from Taylor McKenna from the Department of Defence dated 15 December 2015 (Exhibit 2). In response to a request for information on the Applicant’s naval service/discipline, Mr McKenna advised that the Applicant was  charged with two counts of a summary offence under s 39 of the Naval Discipline Act 1957 (UK).  In 1964 the RAN was still subject to UK discipline law. Section 39 provided:

   “Every person subject to this Act who is guilty whether by an act or omission or otherwise, of conduct to the prejudice of good order and naval discipline shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.”

2. Mr McKenna analysed Exhibit 5 and made the following comments about Section II of the Charge Sheet which sets out the offences the Applicant was convicted of:

   “The relevant section is not quoted on the A.S. 241, but the offences with which the member was charged are clearly laid out in Section II and can be matched to the relevant charge. A range of acts/omissions fell under the general rubric of section 39, including, IAW BR. 11 Manual of Naval Law, Chapter 3, Section 37, disobedience of the lawful command of a person other than a superior officer. The act was required to be prejudicial to both good order and naval discipline. J.R.2 Hammond, having been appointed as the class leader of Bourke Division, was a person authorised to issue certain lawful commands to his fellow Junior Recruits. Having disobeyed a lawful order, and having struck J.R.2 Hammond, J.R.2 Walker had committed two acts which the summary authority might consider as being prejudicial to both good order and naval discipline. What is not clear from A.S.241 is whether J.R.2 Walker was found guilty of both counts, although he was clearly found guilty of at least one count.”

3. Mr McKenna then refers to Section III, Record of Punishments awarded. In that section the date of punishment is stated to be 15 July 1964 and the following words appear underneath “14 x 9”. Mr McKenna explains what these words mean:

   “The annotation ‘14 x 9’ means that the member was awarded 14 days of No.9 punishment. Pursuant to Queens Regulations and Admiralty Instructions for the Governance of Her Majesty’s Naval Service (Q.R.&A.I. for short) as they applied in 1964, Punishment No.9 was extra work and drill for a period not exceeding 14 days. Paragraphs 19831984 of Q.R.&A.I. Chapter 19 – Discipline (Part II) – Section VIII – Regulations for Individual Punishments state…”

4. Mr McKenna then sets out in full “Extra Work and Drill (No.9)”, which is the punishment ratings were liable to be awarded when they were subject to that regime. The punishments outlined involved extra work and limitation of privileges and liberties, but not incarceration.

5. In short, the account provided by Taylor McKenna is that the Applicant was convicted of two summary offences neither of which would have resulted in being incarcerated.

6. The Applicant contended that Mr Tony Tulczyn could confirm that the ‘treatment’ he alleged received was handed out to certain persons. Mr Tulczyn gave evidence at the hearing by telephone conference on 29 November 2016.

7. The Tribunal was presented with an email exchange between the Applicant and Mr Tulczyn in 2014 – Exhibit 1 T8 p.58.

8. On 13 May 2014 the Applicant emailed Mr Tulczyn as follows:

   “Hi Mate

   When I got kicked out of the Navy I was in the cells at Cerberus for a little over a week I got the shit kicked out of me in places that were not visible kidneys, back of the head until I started pissing blood. I was given the full treatment and told if I complained I would have an accident or I would commit suicide by hanging. This was in the early 60’s. Can you confirm that this type of behaviour took place from your lengthy experience in the Navy and Military Police at the behest of a senior officer?

   Cheers and thanks in advance.”

9. Mr Tulczyn replied on the same day as follows:

   “Hi Mate

   I joined Navy as an adult recruit in November 1967. Paid off November 1979. In that time, I heard numerous stories of past brutality towards sailors in cells from the ‘old hands’ but, never personally witnessed any such thing.

   I knew the Master at Arms rank was next to being ‘god’ and all ranks, including commissioned officers, had the utmost respect for this rank.

   During my time, the Navy changed the disciplinary ranks into a Coxswain branch and the Naval Police branch grew out of the old Dockyard Police.

   Regrettably Kell, I cannot help with your version. Although I knew of such things through conversation, the whole systemic culture was changed with the advent of what I described above.”

10. Mr Tulczyn stated that his last three years in the RAN were in the navy police branch. During his service junior recruits served in HMAS Leeuwin and not HMAS Cerberus. He confirmed that the extent of his knowledge was at set out in his email quoted above. He had no personal knowledge of junior recruits being beaten, and, in particular, had no knowledge of such activities at HMAS Cerberus.

11. The Applicant tendered a document (Exhibit 6) which is a print out from the ABC news site of all references to HMAS Leeuwin. The document discloses numerous news reports of junior naval recruits who were the victims of sexual and physical assault between the 1960s to 1984. However, there is no link to these reports and the specific alleged incident involving the Applicant at a different naval base, in a different State and at an earlier time.

12. The evidence before the Tribunal is that the Applicant saw numerous medical practitioners over an extended period of time, commencing, at least, in 1968. Yet, there is no evidence that at any time in more than 20 years after the alleged 1964 beating, did the Applicant ever mention these events.

13. The Tribunal has a number of medical reports prepared over a lengthy period of time.

14. The earliest report is that of Mr Maxwell Katz, consultant psychiatrist, dated 26 May 1998. Dr Katz outlines, at length, the Applicant’s medical symptoms, but also deals with his medical history. He specifically refers to his naval service as follows (Exhibit 8 p.1): “Kelvin stated that he started out in the navy from which he said he was dishonourably discharged because of his disruptive behaviours.”

15. There is no mention in this report of any suggested beatings or physical/psychological injuries. When Mr Clark asked the Applicant why he did not tell Dr Katz about the beatings his reply was: “Why would I?”.

16. The next is a note made by Dr Laurence Kelly of a surgery consultation of 19 July 2008. So far as is relevant the note reads (Exhibit 13):

    “PMH: tonsillectomy, diabetes, chronic neck painfracture C6 and C7 transverse processes – he slipped over on concrete, PTSD depression – he was in Navy – Special operations  was in Iraq, high cholesterol”

17. The Applicant denied knowledge of ever being treated by Dr Kelly and queried the veracity of the document. In fact the Respondent subpoenaed the document from Chevron Afterhours Medical Centre, and the note of Dr Kelly is one of a number notes of doctors treating the Applicant in the period July 2008 until September 2010. There was no substance to the Applicant’s objection and is relevant only insofar as it forms part of a pattern of denying the authenticity of documents that did not conform to his version of events.

18. The Applicant also denied ever serving in Iraq in any capacity.

19. Of interest in the note of Dr Kelly is his reference to the Applicant slipping on concrete.  Again there is no mention of any traumatic beatings while the Applicant served in the RAN.

20. The following week the Applicant was seen by Dr Ellison Stephenson, Neurosurgeon at the Gold Coast Hospital, Southport – Exhibit 10. Dr Stephenson deals with the Applicant’s “eight month history of right lower back pain” and then refers to his past history including “a fall in 1993”. Again there is no record of the Applicant informing the consulting surgeon that he had suffered a severe beating in 1964 which he now claims is the genesis of his spinal problems.

21. The Tribunal also has before it the record of the Applicant’s surgery consultation with Dr Ali Kolahdooz on 21 September 2010. The notes made by Dr Kolahdooz state (Exhibit 13 p.2):

    “woke up this morning with sore lower back, shoots down to both legs, tingling and numbness in her (sic) feet and toes, has an appointment on 1^st of Oct, Tony Spinet, injured lower back in 1993, was a sea captain, studied Law as bachelor at Bond, studying Maritime law as master degree.”

22. Again there is no reference to the alleged 1964 beatings and again there is a reference to the Applicant injuring his lower back in 1993.

23. Again the Applicant did not recall seeing Dr Kolahdooz, but during crossexamination by Mr Clark when the above material was read to him, the Applicant replied: “sounds like me doesn’t it”.

24. Finally, there is the report of Dr Christopher Danesi, consultant psychiatrist dated 11 May 2011. Dr Danesi sets out the Applicant’s past history, including his developmental history. Of relevance are the following notes (Exhibit 11 p.2):

    “He said growing up was perfect. He says he was above average academically but he was always dreaming, never paid attention. He didn’t do that well academically; he left at the age of 15 and joined the Navy.

    He was in the Navy from 15 to 171/2. He was discharged after a fight.”

25. As with each of the other medical reports there is no mention of the alleged 1964 incidents. During cross examination Mr Clark said that it did not make sense that the Applicant had not told the doctors of these incidents, particularly as they are claimed to have had such a traumatic impact on his life. In response the Applicant said that his failure to inform the doctors was “an ego thing”, and that he had been ashamed to admit that he “had the shit beaten out of him”.

26. The only medical report which explicitly deals with the claimed 1964 naval beatings is that of Dr S Jenkins dated 1 May 2015 – Exhibit 7. The Applicant has been a patient of Dr Jenkins since 17 February 2014. In short, the Applicant was first treated by Dr Jenkins after he made his compensation claim.

27. Dr Jenkins was due to give evidence on behalf of the Applicant but was not called due, apparently, to his unavailability.

28. In a number of the medical reports there is reference to a 1993 incident when the Applicant injured his back whilst incarcerated. On 2 November 2015 the Applicant swore an affidavit for this application. He deals with the 1993 incident as follows:

    “20. Whilst in prison I had a further accident pushing a trolley with several sheets on top of the trolley. During the course of this undertaking a sheet caught under the front wheel and it began to slip over, I was between the trolley and the pressing machine when it began to fall back onto me, I received injuries to my lower back. Two years later an x ray was performed and the result was that I had fractures to the left and right side of my traverse process. The only part of the x ray was the part which I was injured and did not show the lower part of my spine. As a Master Mariner one of the first things you learn is the stability of the ship and clearly the stability was one of the first things you would learn.”

29. The Applicant was also examined by Associate Professor Peter Steadman, Orthopaedic Surgeon. In his Independent MedicoLegal Report dated 11 September 2015, he outlines what the Applicant told him at their appointment on 24 August 2015 – Exhibit 4 p.4:

    “In 1993 he hurt his back when he was in prison. He said he was in the prison laundry when he was pushed backwards and his back hyperextended over a railing. He said there was no medical care or support and it took a couple of years until after he left jail to have an xray where fractures of his transverse processes were identified.”

30. In Lord Advocate v Blantyre (1879) 4 AC 770 at 792 Lord Blackburn said: “The weight of evidence depends on rules of common sense.” In this matter the overwhelming weight of evidence suggests that the severe bashing the Applicant claims he received in August 1964 is either a fabrication or an exaggeration.

31. It defies logic that the Applicant would not have referred to this incident when seeking medical assistance over the decades. His claim that he did not mention it because of his ego is fanciful, particularly as he was seeking medication for panic attacks and a range of ailments. To suggest that his manhood would be diminished by confiding in a medical professional that as a 15 year old he was assaulted by four adult navy personnel is not believable.

32. The preponderance of evidence suggests that the Applicant’s naval service, short and unhappy as it was, did not involve a severe bashing that left him physically and emotionally damaged. The evidence suggests that he was a headstrong young man not suited to the discipline of the time in the navy of that era.

33. This is not to say that the Applicant may not have been the victim of an assault, but there is no evidence, apart from the Applicant’s own statements, that it was a severe assault if it occurred. As is discussed below, the Applicant testified that he was not in severe pain and disabled after the alleged incidents. Far from it, in his Statement he says (Exhibit 1 T4 p.25): “after 3 weeks and the migraines and the kidneys were causing very little pain” and that he was physically well enough to travel to Crib Point next to HMAS Cerberus, crawl through a swamp, and wait for three weeks so that he could kill Lieutenant Spencer (p.25).

34. As Dr Steadman testified, if the Applicant had been injured in the manner he described, he would have been in severe pain and disabled, and certainly not be well enough to be crawling through swamps and waiting all night over a period of three weeks to kill an adult naval officer.

35. In short, the evidence before the Tribunal is as follows:

    (a)The Applicant was in good health when he enlisted in the RAN;

    (b)he was not diagnosed with injuries on discharge from the RAN;

    (c)he was not physically disabled after he was discharged and suffered little pain after three weeks;

    (d)he was physically well enough to travel back to HMAS Cerebus and crawl through a swamp daily over a three week period and wait all night in an endeavour to kill an adult;

    (e)there is no record of the Applicant informing any medical practitioner of the naval assault for more than four decades after the alleged incident;

    (f)the Applicant did inform medical practitioners of an accident which injured his lower back  while incarcerated in 1993;

    (g)the Applicant has a pronounced tendency to claim that material prejudicial to this case is the subject of fraud – namely Exhibits 5 and 12, even though these allegations have no foundation in fact, and, are patently unbelievable.

36. I find, therefore, on the evidence presented to the Tribunal, that the Applicant was either not assaulted in August 1964, or that if he was the subject of physical assaults, the injuries sustained were minor, were not as disabling, physically or emotionally, as claimed and did not contribute, materially or otherwise to the injuries that are the subject of the claim.

    Is there evidence linking the diagnosed conditions to the Applicant’s military service?

37. Even though I have concluded that the evidence does not support the Applicant’s contention that he was the subject of prolonged, serious and violent assaults in August 1964, I will proceed on the basis that he was assaulted and then analyse the evidence of his ailments to ascertain if there is a link between the claimed events of August 1964 and his condition in February 2014 when he made his compensation claim.

    Head Injury

38. The Respondent contends (RSIFC para 4.2) that there is no evidence before the Tribunal that would support a finding that the Applicant suffers from a head injury. This contention accurately records the evidence that has been presented.

39. Accordingly, there is no evidentiary basis for a finding of liability for the claimed head injury.

    Spinal Injury

40. The Respondent contends that the Applicant suffers from a degenerative disease of the spine which has not been contributed to, to any degree, by his former military employment – RSIFC paras 4.3  4.4.

41. The Respondent relies on the medical report and oral testimony of Dr Peter Steadman. Dr Steadman is Clinical Associate Professor of Orthopaedic Surgery at the University of Queensland and has 30 years of medical experience including as a senior visiting specialist orthopaedic surgeon at both the Princess Alexandra Hospital and Lady Cilento Children’s Hospital.

42. Dr Steadman examined the Applicant on 24 August 2015, perused all of the medical reports previously referred to, the Applicant’s available service records and prepared an Independent MedicoLegal Report (Exhibit 4). In the section headed “Summary” Dr Steadman makes the following comments (p.6):

    “Kell Walker suffers from back pain. The issue today is a number of things. The first diagnosis currently is degenerative disease with spinal stenosis. We are asked to consider joining the current condition to an injury in 1964. The injury in 1964 was noted some 30 years later when he had a scan that identified malunion of transverse process fractures. It is worth considering what a transverse process fracture is. In essence, it is an avulsion of a bony outrigger of the spine usually associated with a forced injury of the thigh causing a hyperextension of the hip and the muscle pulls the spinous processes off. The first thing is that it is feasible that in the process of assault that the injuries may have occurred. Secondly, in terms of consideration of the natural history of his spine, it is unlikely to be related to the current situation because the transverse processes represent conditions outside the spine and would not cause spinal stenosis.”

43. Dr Steadman then answered a series of written questions that were posed. Question 5 was: “Did the applicant’s former military employment contribute to the onset or aggravation of the condition/s described at 3 above?” The injuries referred to are the degenerative disease of the spine, including disc protrusion, degeneration of facet joints, stenosis and central stenosis. The question then continues: “If so, explain the degree of importance/contribution that the applicant’s military employment made to the onset or aggravation”.  Dr Steadman gave the following answer (p.7):

    “They are separate and not apportionable, or if apportionable based with his current symptoms his spinal stenosis type symptoms represent a 100 percent of the complaint while the transverse processes represent zero.”

44. Dr Steadman was asked firstly by Mr Clark that if the fractures did occur in 1964 how much pain would the Applicant have suffered. Dr Steadman answered by saying that a person who suffered those injuries would likely to have been on crutches for six weeks, with disabling pain in the thigh and with difficulty walking due to the problem of putting weight  on the legs.

45. Dr Steadman was crossexamined by the Applicant. In the course of the crossexamination Dr Steadman said that he accepted that the Applicant does have a serious spinal problem and he did have fractures of the transverse process, but he thought it unlikely those fractures related to the claimed 1964 incidents.

46. At the end of the crossexamination there was a telling exchange between the Applicant and Dr Steadman. The Applicant said words to the effect that following the claimed 1964 incidents he was not in significant pain. Dr Steadman then said if that was the case then the claimed transverse process fractures did not occur as a result of the claimed incidents.

47. The medical evidence before the Tribunal clearly proves that the Applicant suffers from a degenerative disease of the spine which causes him pain and ongoing discomfort. The onset of this condition has not been conclusively determined. However, the overwhelming weight of evidence suggests that the claimed incidents in 1964 had no bearing on the development of this condition.

1. The preponderance of evidence suggests that if the Applicant was beaten in 1964, he recovered quickly and was not in disabling pain. Most telling is the Applicant’s own evidence that he was not in significant pain following the incident, was able to move around, and even able to leave home and travel back to HMAS Cerberus and crawl through a swamp.

2. However, the key issue is this: even if the claimed 1964 incidents occurred and there were fractures to the transverse process, is there a causal link between those injuries at the Applicant’s spinal disease? The unequivocal answer to that, according to Dr Steadman, is no: there is no link. There is no credible medical evidence before the Tribunal to negate or cast any doubt on Dr Steadman’s unequivocal diagnosis, and, accordingly, liability does not exist under the SRC Act for the claimed spinal injury.

   PTSD

3. The Respondent contends (RSIFC a para 4.10) that the Applicant has not suffered from any psychological condition which was contributed to, to any degree, by his former military employment. Reliance is placed on the report and testimony of Dr Varghese.

4. The Applicant relies on the medical report of Dr Scott Jenkins of 1 May 2015 – Exhibit 7. Dr Jenkins is a psychiatrist. The Applicant tried to contact Dr Jenkins to give oral testimony, however those attempts were unsuccessful.

5. I set out below the bulk of Dr Jenkins report:

   “He has described in detail events which occurred during his service which he found produced severe fear and anxiety.

   At one stage he was taken into custody and placed in a cell. He had just recently turned 16 years old. He states he was held in custody for 7 days, and during that time was also held in solitary confinement and was subjected to beatings including kicking and punching. This lead to hematuria. This episode and his age at the time clearly contributed to the evolution of his long term symptoms.

   He was then moved to a larger cell where he became acutely fearful that he would be retaliated against if he made any complaints

   As a result of these conditions on the balance of probabilities Mr. Walker suffers from PTSD as a result of that treatment.

   This PTSD has involved symptoms of intrusive memories, anxiety, depressive symptoms, social withdrawal, and irritability.

   I note that Mr. Walker sought treatment in 1972 and has previously also been treated with Cipramil, Endep and Diazepam.

   As a result of his PTSD symptoms Mr. Walker struggles with activities of daily living and is socially withdrawn with limited interests and inability to sustain relationships.

   His condition I believe again on the balance of probabilities is related to abuse which occurred in the Navy.”

6. The Respondent relies on the medical report and oral evidence of Associate Professor Frank Varghese. Dr Varghese prepared an extensive medical report. He saw the Applicant on 24 August 2015 and carefully considered most of the medical and other reports relating to the Applicant. It is not clear what material Dr Jenkins was presented with other than the accounts given by the Applicant. While Dr Jenkins prepared a single page report, Dr Varghese produced a 26 page document which deals with all aspects of the Applicant’s personal and medical history.

7. The methodology adopted by Dr Varghese was as follows. First he outlined in his report (Exhibit 3 pp.1 8) the information that he was given by the Applicant. Second, he outlined his provisional diagnosis of the Applicant based on that information (pp.8 – 9). Finally, he outlined all of the background material and then commented on that material. In short, the approach of Dr Varghese was to interview the Applicant uncluttered with any background information, and from this blank slate to formulate a provisional diagnosis.  That diagnosis is then tested against the other material.

8. The provisional diagnosis of the Applicant was as follows (Exhibit 3 p.9):

   “The diagnostic issues are not clear. Mr Walker describes a severe event when a teenager in the Navy which is likely to have resulted in a degree of psychological decompensation in most people and ongoing emotional problems in a significant minority. However the development of any anxiety disorder such as PTSD or other anxiety state does not fit with his description of having worked successfully in emergency services and moreover as a diver. It is possible that he suffered episodes of depression with anxiety but if this were the case this is currently in remission. It is likely that there is some narcotic dependence and also the possibility of benzodiazepine dependence.

   Mr Walker’s ongoing difficulties however are unlikely to be a result of mental disorder, whether caused by the incident he nominates in the Navy or other causes. It seems that there are significant vulnerabilities in personality if not personality disorder. I note a history of unstable relationships, lack of contact with children, estrangement from family of origin and imprisonment apparently as a result of violence. I also note the use of aliases and instability of abode. All this suggests that there are significant antisocial traits and also narcissistic traits in the personality, but this is not to suggest that there are no personality strengths if his account of his work history in salvage and the Merchant Navy is correct as is his attaining tertiary qualifications in law with limited original education.”

9. Dr Varghese then considered the Applicant’s unsigned statement which has been quoted at length earlier. He referred to the incident when the Applicant says that he returned to HMAS Cerberus in order to kill Lieutenant Spencer and says (p.10):

   “The account of Mr Walker returning to the naval base in order to Kill a Lieutenant some weeks after the alleged incident and then able to return to the base on three different occasions is not consistent with having suffered severe psychological trauma as a result of the incident. This ought to have led to avoidance, particularly given his account of subsequently moving frequently and changing his name for fear of further violence from the alleged perpetrators.”

10. Dr Varghese then refers to the Applicant’s account of working as a diver, and, in particular his rescue efforts at both the West Gate Bridge and Tasman Bridge disasters (p.10):

    “if Mr Walker had PTSD as a result of the alleged incidents in the Navy, it is difficult to see how he could have engaged in rescue operations with respect to the Westgate and Derwent Bridges incidents that occurred in 1970 and 1975 respectively. Moreover if he had been involved in rescue and retrieval in the two incidents, these experiences would be expected to exacerbate any PTSD.”

11. Dr Varghese concludes (p.23) “Mr Walker’s current psychosocial dysfunction as described in his account primarily arises from personality.” Further (p.25): “Mr Walker’s disorder of personality is not a result of his military employment ie his experiences in the Navy.”

12. Dr Varghese had the benefit of considering the report of Dr Jenkins and made the following comments on it (p.19):

    “Dr Jenkins has accepted entirely Mr Walker’s account of his experiences in the Navy. This is unsurprising given that there is no information to the contrary.

    I note however that there is no reference to Mr Walker’s other multiple traumatic experiences over the course of his life as alleged to Dr Katz and Dr Danesi, both of whom also considered those alleged events as being of importance in the genesis of his psychiatric problems and diagnosis although Dr Katz does not make a formal diagnosis of PTSD. Also there is no mention of further experiences with the Navy in special operations in Iraq.

    Dr Jenkins’ opinion as to the diagnostic issues if it was put to him that Mr Walker’s account of his experiences in the Navy is doubtful would be of interest.”

13. In this matter the Tribunal has had the benefit of receiving from Dr Varghese a comprehensive medical report and having his opinions tested by crossexamination. His report is the only expert evidence on PTSD which was provided after not only obtaining the Applicant’s version of events, but perusing all of the available relevant documentary material.

14. Dr Jenkins, on the other hand, only had the benefit of the Applicant’s claims and formed a professional opinion based on those claims, unencumbered by all of the other events, circumstances, behaviour and stories of the Applicant over the past fifty years. That he reached the professional opinion he did is unexceptional, but, as Dr Varghese notes, it is unclear what opinion he might have reached had he been fully briefed with all of the facts.

15. The Tribunal prefers the conclusions reached by Dr Varghese, as it is abundantly clear that those professional conclusions are soundly based and the product of a comprehensive forensic analysis of the Applicant’s circumstances from 1964 to the present.

16. Accordingly, I find that the overwhelming weight of evidence leads to the conclusion that the Applicant has not suffered from any psychological condition which has been contributed to, to any degree, by his military employment in 1964.

    CONCLUSION

17. The preponderance of evidence before the Tribunal strongly suggests that the alleged bashing claimed by the Applicant whilst enlisted in the RAN in 1964 is either a fabrication or an exaggeration.

18. In forming this conclusion the Tribunal has been drawn, inexorably, by the tidal flow of the evidence. The sheer weight of evidence demands no other conclusion.

19. Three matters stand out, although it must be said that these are not exhaustive.

20. First, the savage beating claimed by the Applicant was neither noticed when he was medically examined on discharge nor, more tellingly, did it prevent him from engaging in physical activities shortly thereafter which are inconsistent with the medical state he claimed he was in.

21. Second, there is no record of the Applicant actually telling any medical professional, or indeed anybody else, of these beatings for decades after 1964, even though he did report other incidents, including an accident while he was incarcerated in circa 1993.

22. Third, the Tribunal formed a negative view of the veracity of some of the evidence given by the Applicant. On a number of occasions when confronted with damning inconsistences or prejudicial material, the first recourse of the Applicant was to deny responsibility and blame somebody else, usually imputing to them bad motives or fraud. His denial of the authenticity of the Record of Naval Penalties (Exhibit 5), his refusal to accept that he had been treated by Dr Kelly and the denial, when asked, that he had ever told Dr Kelly that he had served in Iraq, all illustrate a pattern of behaviour that taints his credibility.

23. Further, even if it was accepted that the Applicant’s version of events in 1964 is accurate, the sheer weight of medical evidence precludes a finding, on the balance of probabilities, that the head, spinal or PTSD injuries either exist (the head injury) or were contributed to, to any degree,  by the events at HMAS Cerberus in 1964.

    DECISION

24. The Tribunal affirms the decision under review.

I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso

.................................[Sgd].......................................

Associate

Dated: 9 January 2017

Date(s) of hearing:	29 November 2016
Date final submissions received:	7 December 2016
Applicant:	In person
Counsel for the Respondent:	Mr Charles Clark
Solicitors for the Respondent:	Mr Matthew Hawker Sparke Helmore Lawyers