WNWM and Military Rehabilitation and Compensation Commission (Compensation)
[2025] ARTA 1514
•22 July 2025
WNWM and Military Rehabilitation and Compensation Commission (Compensation) [2025] ARTA 1514 (22 July 2025)
Decision and Reasons for Decision
Applicant/s: WNWM
Respondent: Military Rehabilitation and Compensation Commission Tribunal Number: 2023/7112
Tribunal: Senior Member A. George
Place: Darwin
Date: 22 July 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the Respondent is liable to pay compensation to the Applicant.
Statement made on 22 July 2025 at 10:23am
........................................................................
Senior Member A. George
Catchwords
VETERANS – Royal Australian Air Force – Post Traumatic Stress Disorder – Major Depressive Disorder – Delusional Disorder – Somatic Symptom Disorder – date of onset – whether condition was contributed to, to a significant degree, by service – entitlement to compensation – decision under review set-aside
Legislation
Administrative Appeals Tribunal Act 1975 Administrative Review Tribunal Act 2024
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 Cases
Abrahams v Comcare [2006] FCA 1829
Comcare v Mooi (1996) 69 FCR 439
Delahunty v Repatriation Commission [2004] FCA 309
MRCC v Dalgrin [2022] FCA 83
Pacific Mining Company Pty Ltd v Barton [2003] FCA 498 Rodriguez v Telstra Corporation Limited [2002] FCA 30 Woodward v Repatriation Commission [2003] FCAFC 160
Statement of Reasons
WNWM was appointed as an Officer Cadet pilot trainee in the Royal Australian Air Force (‘RAAF’) in November 1998, aged 23 years. He discharged in July 2004 and is now aged 49 years. On 11 February 2021, WNWM lodged a claim seeking liability for an anxiety disorder.
On 28 September 2021, WNWM’s claim was refused on the basis that he was not entitled to compensation for Post Traumatic Stress Disorder (‘PTSD’) or a Major Depressive Disorder (‘MDD’). This refusal was affirmed by the Respondent in September 2023, which is the decision under review.
The parties have placed detailed issues before the Tribunal in their respective, and revised, Statements of Facts, Issues and Contentions. These issues may be condensed into the following questions:
(a)applying the provisions of the Safety, Rehabilitation and Compensation (Defence- Related Claims) Act 1988 (‘DRCA’), does WNWM suffer from a mental ailment? If so:
(i)what is the appropriate diagnosis?
(ii)what is the date of onset?
(b)was any ailment contributed to, to the requisite degree, by WNWM’s service?
(c)is WNWM entitled to compensation?
For the following reasons, the Tribunal sets aside the decision under review and in substitution decides that the Respondent is liable to pay compensation to the Applicant.
THE DECISION UNDER REVIEW
The Respondent has sought a decision either affirming the decision under review, or alternatively dismissing the application for review as an abuse of process where issues properly belonged to earlier litigation.
In its closing submissions, the Respondent has also raised an issue of the scope of WNWM’s claim as a threshold jurisdictional issue. An affidavit of Ms Audsley dated 18 March 2025 also claims that the Respondent has been prejudiced in receiving late notice of WNWM’s PTSD. This affidavit addresses an allegation of the denial of antibiotics following discharge from Hollywood Private Hospital that the Respondent says that it cannot adequately investigate.
Accordingly, it is useful to summarise Ms Audley’s statement of 6 November 2023, made under section 37 of the Administrative Appeals Tribunal Act 1975, that sets out the finding on material questions of fact and the reasons for the decision under review. It is also useful to summarise the original decision of 28 September 2021 and the decision under review of 27 September 2023.
On 11 February 2021, WNWM completed a claim for an anxiety disorder.
On 28 September 2021, the delegate determined that the appropriate diagnosis of WNWM’s conditions were:
(a)PTSD, with a date of onset of 16 November 2016 following a diagnosis by Dr Barbara Visser; and
(b)MDD, with a date of onset of 17 October 2019 following a diagnosis by Dr Lana Lubimoff.
The delegate also wrote about WNWM’s claim that immunisations administered by the RAAF are causally related to ill health that WNWM suffered throughout the course of his military service. A decision dated 7 March 2003 refused liability in the absence of a medical diagnosis and sufficient evidence connecting WNWM’s military service and the administration of vaccines. The delegate said, “I am precluded from entertaining any claim that relates to the vaccinations received during service and the occurrence of adverse symptomology thereafter as this nexus has been determined as per [FILE NAME]”.
By the nexus being determined already, the delegate was referring to merits review by the Administrative Appeals Tribunal in 2011; and subsequent judicial review by: the Federal Court of Australia (2014), the Full Court of the Federal Court of Australia (2015), and the High Court of Australia (2016).
Early in these proceedings, a pseudonym was granted to the Applicant by another member in the former Administrative Appeals Tribunal. To maintain the practical effect of this pseudonym, the Tribunal will therefore only refer to prior merits and judicial review in publicly unidentifiable terms. The Tribunal notes the Respondent’s submission made in closing addresses about open justice. However, no application was made to revoke the granting of a pseudonym to the WNWM. In balancing procedural fairness to WNWM, and the principles of open justice, procedural fairness prevails in this circumstance.
At the time of the Administrative Appeals Tribunal decision, WNWM did not suffer from a diagnosable psychiatric disorder. This is a different circumstance to the present claim following the diagnoses of PTSD by Dr Visser and MDD by Dr Lubimoff, which is presumably why the delegate proceeded to decide those aspects of WNWM’s claim.
Applying the requisite test for the date of onset, the delegate was not reasonably satisfied that WNWM’s service had contributed to his PTSD or MDD to a significant degree. The delegate therefore denied WNWM’s claim for compensation.
On 8 October 2021, WNWM requested a reconsideration and liability for PTSD and MDD was again denied on 27 September 2023, following extensive explanatory correspondence on 25 August 2023. The delegate found that WNWM suffered from PTSD, but that it was not contributed to from service to a significant degree. The delegate also referred to the High Court’s decision the Respondent is not liable for “Low immunity, fatigue, illnesses and dizziness” and that the claimed effects of the vaccinations do not relate to WNWM’s military service.
SUMMARY OF MATERIAL FACTS
WNWM gave evidence at the hearing and the Tribunal has before it numerous documents that he has authored over the past two decades. WNWM called psychologist Dr Steel to give evidence, and the Respondent called psychiatrist Dr Tessa Daws. The Tribunal also has a vast quantity of medical documents that have been placed before it in evidence. Some of these are duplicated. Many are not relevant. Nevertheless, all documents in evidence have been examined by the Tribunal.
WNWM was born in September 1975. He was involved in a plane crash as an adolescent and injured his back in 1992. Following completion of high school in 1993, WNWM completed a Bachelor of Science in Aviation in 1997. WNWM was a qualified civilian pilot and interviewed for the RAAF.
The Board Psychologist Report of 21 October 1997 recorded that WNWM “was obviously quite anxious and failed to control his anxiety effectively”. The psychologist concluded that WNWM had limited potential to become an effective officer. A Below RAAF Standard Interview Report of 26 November 1996 noted that WNWM had glandular fever. WNWM agreed to reapply to the RAAF the following year.
Medical reports from Dr Catherine Girdler of 11 December 1996 and Dr Jane Wu of 16 December 1997 show that WNWM recovered from his glandular fever. He was then successful in his application to the RAAF.
Immediately before RAAF as a trainee on 6 November 1998, WNWM returned from overseas and was feeling run-down. He proceeded to Officer Training School (‘OTS’) where he was required to receive immunisations on 10 November 1998. Upon his evidence, caused him adverse symptoms such as tongue swelling.
Outpatient Clinical Notes from 6 Hospital record that on 22 November 1998, WNWM was complaining of dizziness and fatigue and soft spongey palette. Notes from Wimmera Health Care Group of 24 November 1998 show that WNWM presented to emergency department, where it was thought he had viral gastroenteritis causing mild dehydration. WNWM believes that he suffered an anaphylactic reaction to his immunisations. In his evidence-in-chief, WNWM said that he was feeling emotionally unsafe at this time.
WNWM was administered further vaccinations on 18 December 1999, 21 January 1999,
8 February 1999, 10 February 1999.
An AC583 Incident and Fatality Report relating to WNWM receiving immunisations contrary to the Australian Immunisation Handbook was not completed until 6 November 2000. In answer to the question, “What went wrong?”, it was stated:
PRIOR TO VACCINATIONS – FIT AND HEALTHY (AIG1Z1) POST VACCINATIONS – CHRONIC FATIGUE / INFECTIONS
No mention of an anaphylactic reaction was made. At the time of the report, WNWM had lost approximately 20 days in hospital and 80 days on sick leave. He had been employed on light or restricted duties for approximately 400 days.
On the objective medical evidence before it, the Tribunal is not reasonably satisfied that WNWM suffered an anaphylactic reaction following any of his RAAF administered immunisations.
WNWM did not have any serious difficulties with the academic aspects of his training. He graduated from OTS in March 1999, completed Combat Survival Course, before commencing 183 Pilots Course at No 2 Flying Training School (‘2FTS’) at RAAF Base
Pearce in Western Australia in July 1999. However, WNWM’s progress was not without incident.
At OTS, WNWM was subjected to ‘tear gas’ during training. The Tribunal has WNWM’s course report of 19-20/98 Junior Officers Initial Course and notes that he passed Nuclear, Biological and Chemical Defence Training. However, the Tribunal does not have the benefit of any calendar from that course to identify the proximity of the ‘tear gas’ aspect of his training to his immunisations. Nevertheless, WNWM says that his airways were already swollen at this time, and he felt like he was suffocating. He had an overwhelming feeling of powerlessness.
WNWM gave evidence of being placed in a hypobaric chamber during a week of training at RAAF Base Edinburgh at the Institute of Aviation Medicine. The Tribunal does not have the benefit of any chamber logs before it and the timing of this event is unclear. Nevertheless, WNWM said that his tongue and airways were still swollen at the time, and he says that he experienced hypoxia. WNWM said that it felt that someone was powering down his brain and that this is what it feels like to die. This experience chipped away WNWM’s sense of safety.
Several incidents occurred whilst WNWM was in Western Australia at 2FTS.
WNWM gave evidence of a white-water rafting incident where he was dragged a couple of hundred metres under water. WNWM said that he suffered breathing difficulty and thought he was going to drown. He began to think that his job was riskier than he originally thought. There is little detail of this incident in the evidence. In the absence of evidence of inducement or encouragement by the RAAF to participate in this activity (see MRCC v Dalgrin [2022] FCA 83, [77]-[78]), the Tribunal is not reasonably satisfied that this activity occurred in the course of his employment.
WNWM was admitted to Hollywood Private Hospital from 23 to 29 September 1999 with a febrile illness. His general practitioner’s address was Heath Services Flight at RAAF Base Pearce, and the medical records indicate that WNWM was transferred from Heath Services Flight to the care of Dr Klimaitis. A relevant note states:
ADMITTED HSFPEA 22 SEP 99 ? PNEUMONIA
TRANSFERRED HOLLYWOOD HOSPITAL ON 23 SEP 99 FOR ADMISSION UNDER DR A. KLIMATIS (GENERAL PHYSICIAN).
During the hearing, a submission was made regarding the connection of WNWM’s treatment at Hollywood Private Hospital with his RAAF service. The Patient Pre-Admission form dated 23 September 1999 has “RAAF BASE PEARCE BULLSBROOK MEDICAL” as the person responsible for the account. However, the Respondent’s submission is that payment of this account does not convert all alleged representations by persons during that time into an employment event.
It was not open to WNWM, as a trainee in the Permanent Air Force, to select his own medical treatment. On the evidence, the Tribunal is reasonably satisfied that WNWM’s treatment at Hollywood Private Hospital was induced or encouraged by the RAAF. His interactions with persons whilst undergoing treatment were an employment event.
Under Dr Klimatis’ care, WNWM was administered intravenous broad-spectrum antibiotics and his very sore throat improved. Intravenous antibiotics continued for five days before WNWM was changed to Augmentin duo forte twice daily, which WNWM was to continue for 10 days. The discharge summary does not include any follow-up and Dr Klimatis’ report of 30 September 1999 does not raise any life-threatening events whilst under his care.
In his evidence, WNWM said that he did not know if he would be kept alive when he was transferred to Hollywood Private Hospital. He was petrified and says that he was told by staff that his condition could have caused his death. The antibiotics that were administered to him felt like ice. He was sleep deprived and woken up every hour. He was grateful for being kept alive, but terrified about being returned to RAAF Base Pearce.
WNWM alleges mistreatment upon his return to RAAF Base Pearce. He was administered tablet antibiotics, which were presumably the Augmentin duo forte that Dr Klimatis had directed, although he wished to return to intravenous antibiotics. WNWM says that he was cold and was refused blankets and was woken up every 30 minutes. WNWM felt like he was being punished.
The Tribunal notes a report from head and neck surgeon, Dr Philip Grey, dated 14 February 2000. This report refers to WNWM’s admission at Hollywood Private Hospital and opines
that WNWM had pharyngitis at the time. Dr Grey also noted that “It has only been the last six months that he has had throat pains”. This significantly post-dates WNWM’s training at OTS, and the vaccination and tear-gas incidents. No mention of a history of anaphylaxis is made.
On the evidence before it, the Tribunal is not reasonably satisfied that WNWM experienced a life-threatening illness immediately before, during, or immediately after his admission to Hollywood Private Hospital. The Tribunal is reasonably satisfied that WNWM’s medical care was appropriate in the circumstances, including the administration of antibiotics. The Tribunal makes this finding acknowledging the evidence of WNWM but noting that his beliefs are inconsistent with the objective evidence.
Exhibit A4 is an Aviation Safety Occurrence Report, which refers to an incident on 16 December 1999. A near miss occurred during an aerobatics phase of training near RAAF Base Pearce. Travelling at 310 knots, at 4000 feet, another aircraft passed approximately 100 feet under the aircraft in which WNWM was a student. Comparatively little has been made of this near miss in these proceedings. In his proof of evidence dated 14 March 2025, WNWM stated:
In December 1999 I had a near miss with another aircraft. I don’t think the AGS would know anything about it. I have started a Freedom of Information request. I was thinking of what other near-death experiences I had in the air force. There should be an ASOR[.] It is some sort of incident report. I should have done it years ago. Psychologists have been telling me since 2016 that I have PTSD but I did not know about the importance of criteria A stressors.
WNWM continued to suffer medical complaints, which are summarised in the Central Aircrew Medical Employment Classification Review (‘CAMECR’) board report of 28 October 2002. At that time, WNWM was grounded “because of ongoing general ‘unwellness’”. WNWM had “steadfastly” refused to be reviewed by a consultant psychiatrist, but the Board contemplated that WNWM may have developed a psychological overlay to a protracted illness.
The Board noted that WNWM had been reviewed by an immunologist in March 2000, Dr Martin Stuckey. In June 2000, WNWM commenced a trial of Intragram and this caused
him to feel better. In a letter of 30 May 2000, Dr Stuckey described treatment as being given intravenously over several hours and requiring admission as a day patient for half a day every three weeks.
On 6 November 2000, a Central Air Crew Medical Fitness Board (‘CAMFB’) had found WNWM fit to fly with caveats but raised the issue of WNWM’s future deployability and the RAAF’s willingness to continue training WNWM where he would require medium to long term therapy. In a letter dated 15 September 2000, Dr Stuckey had indicated that treatment may be lifelong.
WNWM received Intragram until April 2001 and was granted flying privileges during that time. Because of a change in ADF pilot training, WNWM did not immediately return to 2FTS but instead commenced 10 ADF Basic Pilots Course at the Australian Defence Force Basic Flying Training School (‘BFTS’) in March 2001.
WNWM gave evidence about the negative effect on him when Intragram infusions were ceased in May 2001, and he was suspended from course shortly thereafter. In WNWM’s account at the hearing, his Intragram was ceased upon the direction of Wing Commander W1 due to having insufficient people and aircraft to accommodate WNWM. WNWM then formed beliefs of institutional betrayal and a loss of trust in the RAAF due to the withdrawal of his Intragram treatment.
This account differs to that WNWM gave on 11 September 2002 in response to a health statement issue, where he wrote about his Intragram treatment:
… My options no longer include feeling great. Rather, they are feeling unwell, or having a tube in my arm with other people’s blood pumped into me monthly so as to feel less bad. I perceive this as quite an annoyance.
Similarly, I am aware of the understandable aggravation that it must provide my unit. 2FTS is supportive of my desire to get well and return to flying.
1 It is unlikely that this person was on notice of these proceedings and the Tribunal has decided not to name them or identify their position.
As for the clinical necessity of Intragram, on 2 July 2001, clinical immunologist and consultant physician Dr David Sutherland wrote that WNWM did not require Intragram. In an earlier report of 22 March 2001, Dr Sutherland had found WNWM to be in “rude good health” following an examination.
An allegation was subsequently made by WNWM, and investigated by Wing Commander Thompson, that Dr Sutherland’s opinion was influenced by a telephone call by Wing Commander W. Dr Sutherland denied any such influence in a letter dated 20 July 2004 and Wing Commander Thompson concluded that Dr Sutherland’s opinion was properly made. This is relevant as, in the hearing, WNWM gave evidence that Wing Commander W’s alleged conduct was a cause of his feelings of institutional betrayal.
The Tribunal has contemporaneous psychological records before it in evidence. The primary purpose of most of these is for counselling and informing command action, rather than diagnosis and treatment, and it is unnecessary to recite them in detail. A notable Psychological Report related to WNWM’s backcoursing from 10 ADF Basic Flying Training Course, dated 3 May 2001. The report was written after a referral for assessment from Wing Commander W. In that assessment, WNWN “presented as being confused and frustrated” and “sadly accepting of having to be backcoursed again”.
WNWM commenced 12 ADF Basic Pilots Course in August 2001, which he completed in March 2002. He proceeded back to 2FTS.
Regarding the clinical inappropriateness of Intragram, in a report dated 27 August 2002, Dr Stuckey furthermore wrote:
There is no clear evidence at the present time of a humoral immune deficiency, and therefore no clear indication for re starting Intragram. However if [WNWM] does continue to have proven bacterial infections, or if his immunoglobulins or subclasses fall further, then we could start intragram again.
One of his major symptoms at the moment is fatigue, which may be a result of his recent infections, in which case it should improve. If not then it will need investigating in its own right.
In a letter dated 20 August 2002, Dr Marinovich referred to WNWM’s hospitalisation in Hollywood Private Hospital under the care of Dr Klimatis in September 1999. Dr Marinovich noted that WNWM had resumed flying the following month “but still had dizziness, fatigue and decreased concentration”. Dr Marinovich noted the positive effects of Intragram on WNWM, “during which time he felt very well” and was symptom free. Nevertheless, Dr Marinovich could not find a scientific basis for continuing the treatment.
WNWM’s fatigue issues were investigated by a respiratory physician, Dr Jack Philpott. In a report of 5 September 2002, Dr Phillpott wrote that he had assured WNWM of no specific abnormalities.
The CAMECR report of 28 October 2002, which has already been referred to, effectively ended WNWM’s flying career in the RAAF. It is a thorough document with considered conclusions and recommendations, which deserve quoting at length:
13. The case of [WNWM] is most complicated. To summarise, the member has no formal diagnosis of his ill-health, there are unresolved neuro-psych issues, there is no accurate prognosis, Intragram treatment is subjectively rather than objectively based, such treatment is incompatible with deployment, and the member has not yet completed his pilot training and is “inexperienced” in a broader military sense. Despite this, the member is keen to return to flying for the RAAF as his primary goal. The options include releasing the member now or contining to wait (how long?) for a possible recovery.
14. The AVMED [Aviation Medicine] component of the CAMECR offers the following recommendations to the MECRB regarding [WNWM]:-
Either:-
a. He be discharged from the ADF because of continuing health problems that prevent him from completing flying training (MEC4, A4).
Or:-
b. He continue to be unfit for flying duties and unfit to deploy for the medium to long term, and with a prognosis unknown (MEC303, A3).
WNWM was posted to 44 Wing at RAAF Base Williamtown in November 2002, where he substantially remained for the next 18 months. It is unnecessary to recount the events that occurred there. On one occasion WNWM says that he was told by a chaplain that his career was in jeopardy. On another occasion WNWM says he was threatened with imprisonment if he spoke out about the Redress of Grievance process. WNWM tried to save his RAAF career in which he had invested much. In WNWM’s evidence, he felt depressed and angry, but he did not feel safe to speak out.
Nevertheless, WNWM did speak out. On 5 April 2004, WNWM sent the Chief of Air Force an email outlining his concerns. WNWM referred to being “close to death” in September 1999 and reiterated his grievance regarding the withdrawal of Intragram. In that letter, WNWM also outlined his RAAF service to date. This included working as an operations officer at 76 Squadron and 2FTS and working in system analysis and managerial restructuring for Air Training Wing and Air Combat Group. He designed and created websites.
At the time of writing to the Chief of Air Force, WNWM was working in 44 Wing tactical operations. He “enjoyed working with many, very professional ADF members, including those at HQ44WG”. WNWM expressed his research interests. He sought to come to an arrangement with the RAAF to assist increase its capability, especially regarding Joint Strike Fighters and Unmanned Combat Aerial Vehicles.
WNWM also raised his concerns with the then Deputy Prime Minister. Exhibit A3 is a letter from Mr Anderson to WNWM dated 4 June 2004 acknowledging his allegations.
WNWM was unable save his career. In his Discharge Health Statement of 26 May 2004, in response to the question “Do you suffer from any illness or injury at the present time?”, WNWM wrote:
10 NOV 98 & 18 DEC 98 HOSPITAL @ RAAF LAVERTON FOR THE FOLLOWING: SWELLING: TONGUE AND TOP PALLETTE (SIC); BRONCHITIS; URTI; GASTRO; DIZZINESS; FATIGUE; MALAISE; MYALGIA; LYMPHOPENIA;
LYMPHADENOPATHY; TONSILITIES; VERTIGO; THEN CAMPYLOBACTEYR, URTI, LOSS OF VOICE, STREPOCCAL F, TONSILITIS, MICROPLASMA, PNEUMONIA, INFLUENCZA A, IMMUNOGLOBULIN IgG1 SUBCLASS DEFICIENCY – EXPECTED LIFELONG REQUIREMENT OF INTRAVENOUS GAMMAGLOBULIN BLOOD INFUSIONS (THOUGH DISPUTED BY CO BFTS 02 MAY 01 WITH INSTRUCTIONS TO DR SUTHERLAND TO DISREGARD IgG1 DIAGNOSIS).
Various reports from Dr Tonkin on 1 July 2003, Ms De Lapp on 6 January 2004, Professor Fagan on 13 January 2004, and Wing Commander (Dr) Duffy on 9 June 2004 indicate that WNWM was suffering from vertigo. Dr Halmagyi found no pathological cause for WNWM’s minor vestibular symptoms and could not attribute vestibular symptoms to immunisation. Weight is placed on this report as Dr Barrie, in his report of 18 December 2002, recognised Dr Halmagyi as “a notable expert on balance disorders”. An MRI Acoustic screen of 11 August 2003 found no evidence of an acoustic neuroma. “PERSISTING VERTIGO” is the reason given by Wing Commander (Dr) Duffy in WNWM’s Invalidity Retirement from the Defence Force Medical Information form of 23 June 2004.
WNWM was discharged in July 2004. Group Captain Needham, the Director of Personnel Officers – Air Force, signed a certificate on behalf of the Chief of Air Force. This recognised WNWM’s contribution and commitment. It expressed gratitude for WNWM’s three years and eight months of service.
Over the following years WNWM studied at a theological college, travelled, married, and had children. WNWM qualified for a Disability Support Pension. He engaged in litigation.
Exhibit R3 contains a medico-legal report from psychiatrist Dr Marilyn Moore, dated 7 June 2011. At the time, WNWM had done some study at theological college and had married. Dr Moore described that psychologist Ms Susan Dang had diagnosed WNWM with anxiety, stress and depression. However, Dr Moore concluded that WNWM did not suffer from a diagnosable psychiatric disorder.
The Tribunal notes reliance on Dr Moore’s evidence in prior merits and judicial review proceedings.
WNWM eventually consulted neurologist, Dr Jane Prosser, upon referral from his general practitioner, Dr Jennifer Hebblewite. On 11 July 2016, Dr Prosser wrote that WNWM had no evaluation of his vertigo since 2008 and noted his normal MRI in 2008. She went on to opine:
With regard to whether the vertigo is a manifestation of migrainous vertigo unfortunately [WNWM] has no history of headache and I think it is very difficult to make this diagnosis in the absence of headache.
He denies psychological or psychiatric problems and has apparently seen three psychiatrists on previous occasions who have not been able to make any psychologic or psychiatric diagnosis.
[WNWM] is concerned about additional exposures apart from the vaccines and these include tick bites, tear gas, hyperbaric chambers and in general the occupation of flying jets which subjects the body to unusual stresses.
WNWM sought psychological support. A clinical psychologist, Dr Barbara Visser, wrote a report dated 19 December 2016 following a first session on 16 November 2016. WNWM was presenting with several issues at the time, which Dr Visser said included “Symptoms of posttraumatic stress since 1998, exacerbated by his dealings with the RAAF and other authorities (including legal action against DVA since 2010)”.
Psychiatrist and psychotherapist, Dr Lana Lubimoff, wrote a report dated 19 April 2017. In that she notes the treatment that WNWM is receiving from general practitioner Dr Jennifer Hebblewhite and Psychologist Dr Visser. Dr Lubimoff records diagnoses of PTSD, depression, “Vertigo and Tinnitus (Post Vaccination / worsening with anxiety”, and subclinical hypothyroidism. Amongst several issues, she raises:
·Traumatic experiences in the Navy (sic) frustrating self autonomy and creating a vicious cycle of ‘Learned Helplessness’
·Preoccupation with this is blocking healing.
In a report of 29 June 2017, consultant psychiatrist Dr Daniel Pellen wrote to Dr Hebblewhite agreeing with Dr Visser and Dr Lubimoff that WNWM has PTSD and MDD. As to causation, Dr Pellen wrote:
[WNWM’s] anaphylactic response to his vaccination has led to the MDD and PTSD and whilst the concurrent vertigo and tinnitus may have been fully treated his PTSD symptoms should be amenable to further reduction.
Between August 2017 and February 2018, Dr Hebblewhite noted that WNWN’s father had cancer and then passed away. WNWM had a strained relationship with this father, who had been a pilot before becoming a cotton farmer.
Dr Lubimoff later confirmed her diagnoses of “Post Traumatic Stress Disorder and Depression as well as Vertigo & Tinnitus and Subclinical Hypothyroidism” in a letter dated
24 April 2018. She recommended Eye Movement Desensitisation and Reprocessing (‘EMDR’) therapy for his PTSD. Dr Hebblewhite then confirmed in a letter of 14 July 2018 that a referral for EMDR was made and confirmed WNWM’s medications, including Zoloft. Dr Lubimoff referred to the relationship between WNWM and his family, including his father, in her report of 9 April 2019.
On 13 August 2018, Dr Hebblewhite recommended that WNWM would benefit from an Assistance Dog with mobility and PTSD training. WNWM was consulting Dr Hebblewhite frequently at that time. In notes dated 19 September 2018 regarding EMDR, Dr Hebblewhite noted that WNWM “feels like he’s dying, but not suicidal”.
On 22 August 2018, WNWM attended Armidale Hospital Emergency Department where he presented with a Mental Health Disorder. WNWM was supported by his wife and appeared “somewhat manic and hyper aroused”. WNWM had attended an EMDR session with clinical psychologist Mr Eric Briggs and “began experiencing symptoms of agitation, distress and anger”. A Mental Health Assessment was conducted, and no clear delusional thinking was assessed.
Detailed Progress/Clinical Notes were taken at Armidale Hospital on 23 August 2018. These include the following:
Late 1998 reports was given immunisation – Anaphylaxis. Near death experience.
Instead of being sent to hospital was reportedly given “tear gas” then put in a hyperbaric chamber.
Other mention is made of bullying and torture at work, being woken every hour throughout the night, and being refused medical health care. The notes include reference to WNWM’s High Court proceedings in 2016 and that “Following 2016 Mental Health deteriorated. Symptoms of PTSD & depression”. He was discharged on 29 August 2018.
By 18 January 2019, clinical psychologist Eric Briggs regarded WNWM as suffering from profound disability. Mr Briggs had conducted 10 sessions with WNWM in 2018 following a referral from Dr Hebblewhite. Mr Briggs wrote:
My assessment has indicated that [WNWM] meets DSM-5 diagnostic criteria for chronic posttraumatic stress disorder, major depressive disorder, as well as experiencing many symptoms of high functioning autism.
Mr Briggs wrote of “persistent abuse and bullying” experienced by WNWM in the RAAF, resulting in severe anxiety and stress when dealing with authority figures.
WNWM was eventually admitted to St John of God Richmond Hospital for treatment of his PTSD. In a report of 9 April 2019, Dr Lubimoff noted that WNWN “has recently been diagnosed with Addison’s Disease and nearly died as a result of an Addisonian crisis”. The Tribunal notes the report of endocrinologist Dr Ash Gargya of 7 February 2019 to Dr Hebblewhite that WNWM was diagnosed with hypothyroidism in 2016 and Addison’s disease in November 2018.
Dr Lubimoff went on to describe WNWM as having suffered an anaphylactic reaction to a vaccine in the RAAF, followed being “forcibly exposed to tear gas right after this”. Dr Visser also notes sleep deprivation and isolation and that WNWN “was totally unsupported by the medical team in the Airforce”. A Hospital Discharge Summary – Psychosocial of 30 April 2019 noted that WNWM discharged against medical advice.
By 23 August 2019, WNWM was consulting Dr Hebblewhite in preparation for a Gold Card application and for assistance on the National Disability Insurance Scheme. A referral was made to Dr Lubimoff for this purpose, with the note reading:
[WNWM] suffers from PTSD from his Air Fore service. He has intrusive thoughts and dreams, is hypervigilant, and has difficulty trusting authority. This was made worse by psychogenic vertigo, and the gradual onset of Addison’s Disease, with adrenal crisis with the stress of PTSD. His medical and psychiatric decline seemed to start after enforced vaccinations i[n] the Air Force.
WNWM suffered repeated adrenal crises. WNWM continued to regularly consult Dr Hebblewhite about his health and his claim, including on 16 September 2020 when a note was made that “Maybe PTSD not related to military service”.
WNWM was referred to a consultant psychiatrist, Dr David Baron. A letter dated 3 December 2020 opined that WNWM’s psychological symptoms developed from the stresses resulting from anaphylaxis in the RAAF and the denial of problems by the RAAF. A letter dated 18 February 2021 noted WNWM’s extensive legal struggles to have his symptoms related to his RAAF service.
Dr Hebblewhite noted several complaints by WNWM about his medical treatment. A note from 9 November 2020 includes an email WNWM complaining that an emergency department doctor would not listen to him, and that “It is clear from [the doctor’s] behaviour that his preference was for me to risk death”. The email goes on:
From a psych perspective, staff like [the doctor] who refuse to follow protocol contribute significantly to the PTSD stress that trigger and exacerbates adrenal crisis.
A note of 18 January 2021 records “Dr Baron talked about loss [of] autonomy in hospital” and that WNWM “feels he may discharge himself in times of imperfect care”. A note on 26 February 2021 indicates that WNWM’s “inconsistent care” was causing him distress. Other notes, on 12 January 2021 and 22 June 2021, indicate that WNWM had made various complaints including to Parliament and the Health Care Complaints Commission.
WNWM’s therapeutic relationship with Dr Baron seems to have broken-down. In a letter to Dr Hebblewhite of 22 June 2021, Dr Baron candidly wrote:
Today [WNWM] pressured me to provide written support for a conflict he has with the hospital and some of its staff.
I made it clear that was not my role which was to encourage him to deal better with the issues he faced and not assist him taking on various authorities which has been a pattern in the past.
I fear he has now written me off.
WNWM continued to be admitted at St John of God Richmond Hospital. A referral from Dr James Meyer of 19 September 2023 wrote:
[WNWM] is currently diagnosed with either PTSD or Anxiety and depression after his time in the military. [WNWM] also has anxiety around death and medical mismanagement after his years of undiagnosed Addison’s Disease. This is having a large impact on his health and he requires admission for diagnosis and stabilisation.
Other significant life events also occurred in 2023. WNWM used psilocybin and a discharge summary from St John of God Richmond Hospital of 26 October 2023, following a 24 day stay, indicated “a brief period consistent with a psychotic episode”. WNWM was having marital problems at the time and police served him with an Apprehended Domestic Violence Order (‘ADVO’) whilst admitted. WNWM’s access to his children was restricted. WNWM’s admission was cut short by a further adrenal crisis. When he was readmitted on 30 October 2023, it was “Noted that the dissociation nature of PTSD can be exacerbated by psilocybin”.
In a report to Dr Hebblewhite dated 13 March 2024, psychiatrist Dr David Graham opined that WNWM’s Autism Spectrum Disorder “made him vulnerable to the suggestion of those who provided him with Psilocybin”. A report by clinical psychologist Mr Jeremy Shields noted that WNWM’s post-traumatic symptoms significantly worsened following the ADVO. An admission note from St John of God Richmond Hospital of 3 April 2024 records that WNWM was suffering “ongoing psychosocial stress with legal proceedings”.
Dr Tessa Daws, a general and forensic psychiatrist, was engaged to provide expert evidence in these proceedings. Dr Daws reviewed WNWM’s extensive medical documentation and interviewed him. She produced reports and gave evidence.
In her report of 24 June 20204, Dr Daws recounted that WNWM reported that he had suffered “ongoing difficulties with dizziness, ‘vertigo’, diarrhoea and a persistently swollen tongue” following non-consensual vaccinations. After suffering a range of physical health issues and becoming increasingly frustrated and annoyed:
[WNWM] reported in September 1999 he was admitted to a civilian hospital in Western Australia. He recalled that he was informed by a nurse that he had ‘nearly died’. He could not recall having been admitted to an Intensive Care Unit. [WNWM] reported that once his condition was stabilised he was transferred to a RAAF hospital. He stated that he now believes that at this hospital he was severely mistreated. He believed that he was woken every hour and was refused comforts like blankets. [WNWM] reported that he had recovered these repressed memories in the context of treatment with Eye Movement Desensitisation and Reprocessing (EDMR) therapy in 2018. He stated that a psychologist had subsequently described his treatment as ‘psychological torture’. (Emphasis added)
The Tribunal notes that a theme of cross-examination of Dr Daws was that WNWM’s trauma was anchored in this incident, which may provide relevant indicia of PTSD.
It is unnecessary to recite the full history given by Dr Daws, although the Tribunal briefly notes that WNWM reported to Dr Daws his reasons for the cessation of his Intragram infusions. WNWM was adamant that a pilot had misrepresented himself as a doctor and influenced the immunologist to cease the infusions. The Tribunal takes this issue to have been one that was subject to an investigation by Wing Commander Thompson, who found to the contrary.
Dr Daw’s initial opinion was that WNWM was presenting with MDD and Somatic Symptom Disorder, with a possible psilocybin related Substance Induced Psychotic Disorder in 2023. Dr Daws regarded WNWM’s litigation as being the significant contributing factor to the onset
of his MDD in 2016 or 2017. Dr Daws gave a date of onset of WNWM’s most recent MDD episode as late 2023 in the context of his marital breakdown.
Dr Daws was not of the opinion that WNWM suffered from PTSD and, unsurprisingly, she was cross-examined at length on this point. The Tribunal also made its own inquires of Dr Daws at times in her evidence.
Dr Daws noted WNWM’s belief that he suffered from an anaphylactic reaction but noted that this belief was not supported by objective evidence of an anaphylactic reaction having occurred. Dr Daws made similar observations regarding WNWM’s fixed beliefs that he was denied appropriate medical treatment and, presumably referring to Wing Commander W and the cessation of Intragram, “his fixed belief that a pilot misrepresented himself as a doctor and pressured an immunologist to revise a diagnosis and later management”.
In Dr Daws’ initial opinion, she favoured a diagnosis of Somatic Symptom Disorder (‘SSD’) over Delusional Disorder. However, Dr Daws modified this opinion in her report of 10 April 2025 for the following reasons:
- [WNWM] has maintained the belief that he experienced anaphylaxis and a life threatening illness and despite being presented with clear evidence from credible sources to the contrary
- [WNWM’s] beliefs appear to have become distorted over time to include a general sense of persecution, incorporating increasingly unlikely situations (for example, nurses and doctors participating in ‘psychological torture’ in a military hospital), which in my opinion is consistent with an expanding delusional belief system
- It appears that [WNWM’s] beliefs have led to ever increasing impairment in his functioning, also consistent with the clinical presentation of a Delusional Disorder, where the affected individual’s world often comes to be dominated by the delusion
- There is a history of psychosis, which suggests a personal vulnerability to delusional beliefs
Dr Daws was confident that WNWM held distorted views regarding his physical health conditions, where these distortions have given rise to an emotional response. Dr Daws was not of the opinion that WNWM’s emotional response was in response to actual trauma and was therefore not genuine posttraumatic stress. There is strength to Dr Daws’ reasoning.
Dr Daws disagreed with the diagnosis of PTSD on the basis that this diagnosis is not underpinned by an objectively identifiable traumatic event. In Dr Daws’ opinion, the medical events experienced by WNWM after his immunisations and surrounding his September 1999 admission to Hollywood Private Hospital did not meet Criterion A for a PTSD diagnosis. Similarly, Dr Daws’ opinion assumes that WNWM was not experiencing an objectively life threating illness during his treatment in September 1999 at Hollywood Private Hospital.
In her 10 April 2025 report, Dr Daws wrote:
I disagree with the diagnosis of PTSD. In my opinion, [WNWM] has experienced distorted cognitions and emotions relating to historical events that were not life threating. It appears that distorted cognitions relating to the alleged effects of vaccination began many years ago, and it appears that beliefs regarding his treatment in the air force may have become distorted over time.
This 10 April 2025 report commented on a report of psychologist Professor Zachary Steel dated 5 February 2025.
The substance of Professor Steel’s evidence is that WNWM suffers from both PTSD and MDD, where WNWM’s MDD and PTSD symptoms overlap but are sufficiently distinct to warrant a separate diagnosis. In a supplementary statement, Professor Steel also considered the following further diagnoses:
(a)SSD
(b)Delusional Disorder
(c)Adjustment Disorder (‘AD’)
(d)Psychological Factors Affecting other Medical Conditions
(e)Generalised Anxiety Disorder (‘GAD’)
(f)Malingering/Factitious Disorder
Professor Steel nevertheless considered that WNWM’s presentation best aligned with PTSD and MDD.
Dr Daws disagreed with Professor Steel’s diagnosis of PTSD. She also opined that Professor Steel opinions on WNWM’s physical health feel outside his area of expertise as he was not a medical practitioner.
It is of note that, although Professor Steel was engaged as an expert, he had prior professional involvement with WNWM in his previous role as Chair of Trauma and Mental Health at St John of God Richmond Hospital. Professor Steel was engaged to provide expert evidence as to whether WNWM met diagnostic criteria for PTSD and MDD, and if these diagnoses were related to WNWM’s RAAF service. Professor Steel reviewed WNWM’s extensive medical documentation and interviewed him. He gave evidence. Professor Steel took a detailed history from WNWM, which does not require repetition.
Professor Steel identified the post-discharge care component of WNWM’s treatment at Hollywood Private Hospital in September 1999 as the critical component of his trauma. Given the centrality of this component to, it is worth quoting Professor Steel’s report at length:
According to [WNWM], the post-discharge recommendations from Hollywood Private Hospital were not adequately followed when he was transferred to the care of Defence Health Services at RAAF Base Pearce. He alleges that:
- Follow-up appointments were not properly documented.
- Monitoring for residual infection was inconsistent.
- Antibiotics were not administered consistently or on time.
The account of [WNWM] which is documented form the period described him feeling unsupported and neglected during in the care provided which he believes deepened
his psychological distress and reinforced a sense of betrayal by Defence medical personnel. This perceived neglect following a life-threatening illness has appeared to reinforce [in] him a firm belief that it was medical inaction of the Health services team at RAAF Base Pearce that led to the original crisis with the continuing belief in the lack of safety of care provided to him by the health services at RAAF Base Pearce.
The Tribunal notes that the allegations made by WNWM, and relied upon by Professor Steel, are not supported by the objective evidence summarised above.
Professor Steel went on the conclude that WNWM genuinely believed that his experience at Hollywood Private Hospital, and treatment afterwards, placed him in a life-threatening situation. In Professor Steel’s opinion, this experience met Criterion A for PTSD. Professor Steel explained his reasoning in detail, but it is sufficient for the Tribunal to summarise that the focus in Professor Steel’s opinion is on WNWM’s beliefs and own threat appraisal of his medical experiences in the RAAF.
Professor Steel noted that WNWM’s PTSD symptoms worsened over time, including whilst serving after reading the Australian Immunisation Handbook. WNWM’s PTSD symptoms stabilised after he left the RAAF but renewed in 2016 following a series of medical crises. In Professor Steel’s opinion there was ‘kindling effect’, where WNWM’s past PTSD condition increased his susceptibility to symptom renewal. Indeed, a notable symptom renewal followed an EMDR session with Mr Briggs in December 2018. In Professor Steel’s opinion, this highlighted the chronic and treatment-resistant nature of WNWM’s PSTD.
Professor Steel considered the evidence for a diagnosis of a Delusional Disorder. Professor Steel noted that WNWM had a strong and persistent belief that his vaccinations caused his autoimmune conditions, that WNWM was preoccupied by this belief, and that it has been reinforced over time through medical disputes and legal proceedings. Professor Steel considered this belief to be overvalued ideas, which may be reinforcing PTSD symptomology. Professor Steel noted that further forensic psychiatric review may be warranted.
Regarding a diagnosis of MDD, Professor Steel opined that by May 2001 WNWM reported a significant loss of hope and that the onset of his symptoms could be traced to that period.
Professor Steel opined that WNWM was feeling betrayed and abandoned by 2004. Despite a period of relative stability from 2004-2015 (excepting a period at theological college), from 2016 WNWM’s depressive symptoms became increasingly severe. This corresponded with the onset of his immune-related conditions and marital breakdown, involving legal restrictions on WNWM’s contact with his children.
Professor Steel opined that it was difficult to isolate any singular cause of WNWM’s MDD. Although WNWM’s military-related stressors may have shaped WNWM’s psychological vulnerabilities, his post-service life is dominant in the current presentation of his condition.
CONSIDERATION
Does WNWM suffer from an ailment?
The Respondent closed on the basis that WNWM did not suffer from any psychological ailments, contrary to concessions made at paragraph [96] of its Statement of Facts, Issues and Contentions, being Exhibit R2. The Tribunal notes that the Applicant’s Statement of Facts, Issues and Contentions, being Exhibit A2, accepted this concession, at page 3. Nevertheless, this point is now in issue.
Under s 4(1) of the DRCA:
"ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
From the material facts and noting Comcare v Mooi (1996) 69 FCR 439, the balance of evidence is clear that WNWM’s behaviour is clinically significant. His recurrent treatment at St John of God Richmond Hospital alone indicates that WNWM is exhibiting a range of behaviours that fall well outside those of a person who is not suffering from mental ailment, disorder, defect or an otherwise morbid condition. Accordingly, the Tribunal is reasonably satisfied that WNWM is suffering from a mental ailment.
Conclusion: Does WNWM suffer from an ailment?
WNWM suffers from an ailment.
What is the appropriate diagnosis?
The crux of this matter is whether the Tribunal is reasonably satisfied that PTSD, MDD, Delusional Disorder or SSD are appropriate diagnoses.
The Tribunal notes that it was particularly assisted by the considered evidence of both Dr Daws and Professor Steel. Both experts gave credible evidence that WNWM’s presentation creates a complex clinical picture, with which the Tribunal agrees. This is a theme that is repeated by numerous medical practitioners and others over time.
Several other psychological conditions have been raised during these proceedings, but not pressed as claims by WNWM, or as appropriate diagnoses by the Respondent, and therefore do not require further consideration. These are Autism Spectrum Disorder, Substance Induced Psychotic Disorder, AD, Psychological Factors Affecting other Medical Conditions, GAD, and Malingering/Factitious Disorder.
For completeness, and despite references in the evidence that WNWM believes that his Addison’s Disease and Hashimoto’s Thyroiditis are related to his vaccinations, these physical conditions have not been pressed as injuries or diseases under the DRCA in these proceedings. They are not considered further.
The Tribunal notes the Respondent’s submission, citing Rodriguez v Telstra Corporation Limited [2002] FCA 30, [25] (Kiefel J), that it cannot base a conclusion upon its own understanding in the absence of evidence on the matter.
PTSD
The Tribunal is mindful of the delegate’s reasoning in the reviewable decision that WNWM suffers PTSD, with a date of onset of 16 November 2016, following a diagnosis by Dr Barbara Visser. It is now the Respondent’s position the Tribunal should place overwhelming weight on the evidence of Dr Daws to the effect that both Dr Visser and the delegate were wrong, and that WNWM does not suffer from PTSD.
WNWM has advanced his case on the basis that the test for Criterion A is not purely objective. In support of this, WNWM has cited Woodward v Repatriation Commission [2003]
FCAFC 160, [141] (Black, Weinberg & Selway JJ) regarding the “perception of a threat, although real in the mind of an individual is not objectively reasonable”.
This was considered in Delahunty v Repatriation Commission [2004] FCA 309, [27] (Tamberlin J), where at [28] His Honour stated:
There may be cases where one person finds something extremely stressful than another person finds stressful but not extremely so. In other cases, on person may find something stressful that other persons do not find stressful at all. Considerable latitude must be extended when considering whether a person has experienced a severe stressor. (Emphasis added).
Accordingly, the Tribunal extends considerable latitude when considering whether WNWM meets Criterion A for a PTSD diagnosis.
The Tribunal places minimal weight on the diagnosis of PTSD made by Dr Visser, on the basis that the Criterion A for a PTSD diagnosis is not fully made out in her report of 19 December 2016. Respecting that Dr Visser was a treating psychologist, and her report should be read historically by the Tribunal in that context, her broad reasoning citing the psychological effects of WNWM’s RAAF service (and ensuing legal action) cannot be easily accepted in the face of the evidence now before the Tribunal. Indeed, the Tribunal draws similar conclusions with the opinions expressed by Dr Hebblewaite and Dr Lubimoff.
Regarding Dr Lubimoff’s opinions, it is unclear if she believed that the facts that she relied upon were objectively true or if it was sufficient for the purposes of the diagnosis that WNWM believed them to be true.
Dr Pellen attributes WNWM’s PTSD to an anaphylactic response following a vaccination. Again, this is a broad reason given in the context of psychiatric treatment. Dr Pellen seems to have accepted as fact that WNWM suffered an anaphylaxis, but the objective medical evidence before the Tribunal does not support this conclusion. Accordingly, minimal weight is placed on this diagnosis.
As a treating practitioner, writing for an audience other than the Tribunal, Dr Baron’s reports have the same issue with Dr Visser, Dr Hebblewaite, Dr Lubimoff, and Dr Pellen in that the
meeting of Criterion A is not fully explained. It is noteworthy that Dr Baron highlights the difficulty of making a psychological diagnosis based on WNWM’s physical symptoms, and Dr Baron also raises the role of WNWM’s legal issues in his presentation. This role of legal issues was reflected in Mr Shields’ notes. Dr Graham’s hospital notes include events that may be inferred as meeting Criterion A, but they do not fully explain how this criterion has been met. Accordingly, minimal weight is placed on their diagnoses of PTSD.
Central to Mr Briggs’ diagnosis of PTSD is the notion of bullying and abuse. Proximate in time are notes at Armidale Hospital on 23 August 2018 mentioning a near death experience from anaphylaxis, tear gas, and a hyperbaric chamber. Again, Mr Briggs’ reports do not clearly make out the basis of Criterion A. It is not for the Tribunal to infer whether Mr Briggs’ diagnosis is made on a purely objective basis, or accounts for the subjective beliefs of WNWM. Accordingly, minimal weight is placed on this diagnosis.
In keeping with their roles as experts, both Dr Daws and Professor Steel squarely address Criterion A. The point of difference in the content of their evidence is, essentially, that Dr Daws opines that it is necessary for a Criterion A event to have objectively occurred before making a PTSD diagnosis. Professor Steel opines that it is sufficient for a person to believe that a Criterion A event has occurred, even though that belief may ultimately be found to have been based on facts that did not occur.
Noting that Dr Daws is a medical practitioner, and Professor Steel is not, where opinions between those experts touch upon WNWM’s physical health then the Tribunal is inclined to prefer the evidence of Dr Daws. The Tribunal does so notwithstanding that it has extended considerable latitude when considering whether WNWM has experienced a severe stressor.
The central incidents raised by WNWM that, he believes, gave rise to his PTSD are his claimed anaphylaxis and alleged mistreatment following his admission at Hollywood Private Hospital. Other claims and allegations, although serious and considered by the Tribunal, are secondary to these events. These two central incidents are both medically related and intrinsically involve physical reactions to medical treatment. Therefore, the Tribunal places overwhelming weight on the opinions of Dr Daws in this regard, over Professor Steel, based on her expertise as a medical practitioner.
Given Dr Daws’ opinion that Criterion A for a PTSD diagnosis is not made out, the Tribunal is not satisfied that WNWM suffers from PTSD.
Conclusion – PTSD:
The Tribunal is not satisfied that WNWM suffers from PTSD.
MDD
There is agreement between Dr Daws and Professor Steel that WNWM suffers from MDD. Noting the other evidence before it, the Tribunal is reasonably satisfied from the evidence of Dr Daws and Professor Steel that WNWM suffers from MDD.
At paragraph [99] of its Statement of Facts, Issues and Contentions, the Respondent has submitted that the date of onset of WNWM’s MDD approximates 2016 or 2017. This consistent with Dr Daws’ opinion, but inconsistent with the reviewable decision where the Respondent had accepted a date of onset of 17 October 2019 following a diagnosis by Dr Lana Lubimoff.
In an appropriately considered fashion, Professor Steel was unable to pinpoint the date of onset of WNWM’s MDD. It is unnecessary to recount his evidence, beyond commenting that Professor Steel had considered WNWM’s early RAAF records in detail.
Placing lesser weight on the reports of various treating practitioners, including Dr Lubimoff, the Tribunal prefers the evidence of Dr Daws. Not only is Dr Daws a medical practitioner who is qualified to opine on physical health, she also had access to vastly more material than WNWM’s treating practitioners with which she was able to form her opinion.
Accordingly, the Tribunal is satisfied that the date of first onset of WNWM’s MDD is 2016.
Conclusion – MDD:
The Tribunal is satisfied that WNWM suffers from MDD with a date of onset of 2016.
Delusional Disorder:
The Tribunal notes paragraph [114] of the Respondent’s Statement of Facts, Issues and Contentions and its closing submissions that there is persuasive evidence that WNWM suffers from a Delusional Disorder or SSD to the exclusion of PTSD.
Dr Daws initially preferred a diagnosis of SSD over Delusional Disorder but reconsidered her opinion in her 10 April 2025 report. The reasons for Dr Daws favouring a diagnosis of Delusional Disorder have been summarised above. WNWM did not experience an anaphylactic reaction because of his vaccines, contrary to his belief, nor was he maltreated after his admission to Hollywood Private Hospital. However, WNWM’s beliefs are anchored in medical experiences that he experienced whilst serving in the RAAF.
Given that the Tribunal has found that WNWM is not suffering from PTSD, little weight is placed on Professor Steel’s evidence regarding his finding against a diagnosis of Delusional Disorder as WNWM’s overvalued ideas cannot be reinforcing PTSD symptomology. The Tribunal notes that Professor Steel quite correctly noted that further forensic psychiatric review may be warranted. This is particularly so where WNWM’s beliefs are anchored in medical experiences.
Considering the evidence before it, the Tribunal is reasonably satisfied that WNWM suffers from a Delusional Disorder.
Dr Daws does not state a date of onset of her diagnosis of a Delusional Disorder. Noting that a diagnosis can evolve over time, the best evidence of a date of onset is the date of Dr Daws’ 10 April 2025 report.
Conclusion – Delusional Disorder:
The Tribunal is satisfied that WNWM suffers a Delusional Disorder with a date of onset of 10 April 2025.
SSD:
The Respondent’s submissions posit SSD as an alternative diagnosis to a Delusional Disorder. On the evidence of Dr Daws, SSD is not an appropriate diagnosis for WNWM where he has been diagnosed with a Delusional Disorder. The Tribunal accepts this evidence and, noting that it has found that WNWM suffers from a Delusional Disorder, is not satisfied that WNWM also suffers from SSD.
Conclusion:
The Tribunal is not satisfied that WNWM suffers from SSD.
Was any ailment contributed to, to the requisite degree, by WNWM’s service?
WNWM’s ailments are MDD and a Delusional Disorder.
Although meaning of ‘ailment’ was not effected by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007, the meaning of ‘disease’ changed substantially. This involved a change from an ailment or an aggravation that was contributed to in a “material degree” by the employee’s employment to a definition under s 5B(1) of the DRCA where the contribution is to a “significant degree” by the employee’s employment. Section 5B(2)-(3) then reads:
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
"significant degree" means a degree that is substantially more than material.
Given the post-2007 dates of onset of WNWM’s MDD and Delusional Disorder, the requisite degree is a significant degree.
It is unnecessary to recite the summary of material facts when considering ss 5B(a)-(e) of the DRCA, all of which is considered. For the purposes of ss 5B(a)-(d), it is sufficient to make the following general observations:
(a)WNWM was appointed as an Officer Cadet pilot trainee in November 1998. He continued in that rank, and as a trainee in that specialisation, until July 2004. This is a period approximating five years and eight months. The Tribunal notes that the WNWM’s presentation certificate gives a period of service of three years and eight months of service. It is unclear to the Tribunal if this is a mistake, or if it reflects periods of ineffective service. In any event, the Tribunal is reasonably satisfied that WNWM’s service occurred over a five year and eight-month period.
(b)As an Officer Cadet, WNWM substantially engaged in officer training at OTS and flying training at BFTS and 2FTS. He had substantial periods of sick leave and light or restricted duties. When he was not training, WNWM was employed elsewhere. WNWN worked as a flight operations officer, in system analysis and managerial restricting, designed websites, and worked at 44 Wing.
(c)The medical evidence before the Tribunal does not allow it to be reasonably satisfied that WNWM suffered a predisposition to either a MDD or a Delusional Disorder prior to joining the RAAF. He did not suffer from a diagnosable psychiatric disorder in June 2011.
(d)The Tribunal notes its findings that the white-water rafting incident did not occur in the course of WNWM’s employment but that his treatment at Hollywood Private Hospital in September 1999 did. WNWM’s litigation, marital issues, and use of psilocybin did not occur in the course of his employment.
MDD:
The Tribunal has already considered the limitations in Dr Lubimoff’s reports, and indeed those reports of various other treating professionals. The Tribunal has also considered the limitations in Professor Steel’s evidence, noting again that he was unable to pinpoint the date of onset of WNWM’s MDD. The Tribunal places lesser weight on this evidence accordingly.
In Dr Daws’ opinion, WNWM’s litigation was the significant contributing factor to the onset of his MDD in 2016 or 2017. His marital breakdown was the significant contributing factor in his most recent MDD episode. In forming these opinions, Dr Daws also considered the issues affecting WNWM’s health.
Considering this evidence, the Tribunal is not reasonably satisfied that WNWM’s MDD was contributed to, to a significant degree, by his RAAF service.
Conclusion - MDD:
WNWM’s MDD was not contributed to, to a significant degree, by his RAAF service.
Delusional Disorder
In her report of 10 April 2025, Dr Daws gave four primary reasons for favouring a diagnosis of Delusional Disorder. The first of these was WNWM’s “belief that he experienced anaphylaxis and a life threatening illness and despite being presented with clear evidence from credible sources to the contrary”. The second regarded the distortion of WNWM’s beliefs over time, “for example, nurses and doctors participating in ‘psychological torture’ in a military hospital”, which is “consistent with an expanding delusional belief system”. These two reasons are firmly anchored in WNWM’s RAAF service. These two reasons alone form a degree of contribution that is substantially more than material.
The third reason Dr Daws gave reinforces the first two, where WNWM’s world becomes dominated by the delusion and increasing impairment.
Dr Daws’ fourth reason for favouring a diagnosis of Delusional Disorder was his history of psychosis, noting WNWM’s single use of psilocybin. In Dr Daws’ opinion, this history of psychosis indicates that WNWM possesses a personal vulnerability to delusional beliefs. The contribution of this reason does not counter the preceding reasons.
Accordingly, the Tribunal is reasonably satisfied that WNWM’s Delusional Disorder was contributed to, to a significant degree, by his RAAF service.
Conclusion – Delusional Disorder:
WNWM’s Delusional Disorder was contributed to, to a significant degree, by his RAAF service.
Conclusion:
WNWM’s Delusional Disorder was contributed to, to the requisite degree, by his RAAF service; however his MDD was not.
Is WNWM entitled to compensation?
Given the findings made above, it would usually flow that the Respondent is liable to pay the Applicant compensation under section 14 of the DRCA. However, issues of re-litigation and notice must be considered before the Tribunal is satisfied that this is the correct and preferable decision.
Regarding issues of re-litigation, and submissions regarding dismissal for abuse of process, the Tribunal notes that this matter is substantially different from earlier merits and judicial review involving WNWM and relies upon substantially different evidence. The case run by the Respondent has contradicted the findings of its own delegate in the reviewable decision. The Tribunal is not reasonably satisfied that WNWM’s claim, or these proceedings, are an abuse of process.
Notice requirements under s 53(1) of the DRCA have been raised as a bar to WNWM’s entitlement to compensation, and the Tribunal notes Ms Audsley’s affidavit claiming that the
Respondent has been prejudiced in receiving late notice of WNWM’s PTSD. Any such prejudice is immaterial given that the Tribunal has not found that WNWM suffers from PTSD.
In the Respondent’s Statement of Facts, Issues and Contentions, at paragraph [57], the decision Lynch and Military Rehabilitation and Compensation Commission (Veterans’ entitlements) [2023] AATA 2228 (Deputy President Sosso) is quoted at length. Paragraphs
[47] and [50]-[51] are quoted, but paragraphs [48]-[49] are omitted.
Omitted paragraph [48] commences: “It is the case that the Courts in a series of decisions have read down the operations of s 53(1)”. Former Deputy President Sosso explained this statement with reference to Abrahams v Comcare [2006] FCA 1829, [18] (Madgwick J) at paragraph [48] and Pacific Mining Company Pty Ltd v Barton [2003] FCA 498, [37] (von Doussa J) at paragraph [49]. Having examined that caselaw, the Tribunal agrees with the former Deputy President.
The issue of notice was not raised in the reviewable decision. Noting that the date of onset of WNWM’s Delusional Disorder is 10 April 2025, and that this diagnosis was favoured by an expert engaged by the Respondent with material provided by the Respondent, the Tribunal is not reasonably satisfied that notice acts as a bar to compensation in these proceedings.
Accordingly, the Tribunal is reasonably satisfied that Respondent is liable to pay WNWM compensation under section 14 of the DRCA.
Conclusion:
The Respondent is liable to pay WNWM compensation.
CONCLUSION
For these reasons, the Tribunal sets aside the decision under review. In substitution, it decides that the Respondent is liable to pay WNWM compensation.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the Respondent is liable to pay compensation to the Applicant.
I certify that the preceding 170 (one hundred and seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member George
............................[Sgnd]...................................
Associate
Datesof hearing: 20 March 2025; 3-5, 10 June 2025 CounselfortheApplicant:
Ms B. Nolan
SolicitorsfortheApplicant:
A W Simpson & Co
CounselfortheRespondent:
Ms S. Wright
SolicitorsfortheRespondent:
Australian Government Solicitor
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