Armitt and Repatriation Commission [2007] AATA 1390; (2007) 95 ALD 741 (30 May 2007)

Last Updated: 15 December 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1390

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W 200500274

VETERANS' APPEALS DIVISION		)
	Re		IAN FRANK ARMITT

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Deputy President S D Hotop

Date 30 May 2007

Place Perth

Decision

The Tribunal sets aside the decision of the Veterans' Review Board dated 19 April 2005 and, in substitution therefor, decides that the intermediate rate of pension is payable to the applicant, pursuant to s 23 of the Veterans' Entitlements Act 1986 (Cth), with effect from 23 July 2004.

..........[Sgd S D Hotop]...........
Deputy President

CATCHWORDS

VETERANS' AFFAIRS – veterans' entitlements – disability pension – rate of pension – applicant served in Australian Regular Army from January 1970 to November 1971 (including service in Vietnam) – applicant served in Western Australia Police Service (WAPS) from 1973 to 2004 – applicant suffers from various war-caused diseases including post-traumatic stress disorder (PTSD) and from various non-service-related conditions – applicant granted disability pension in December 2003 – applicant compulsorily retired from WAPS by reason of PTSD in July 2004 – applicant applied for increase in rate of pension in July 2004 – applicant's incapacity from war-caused diseases of itself alone renders him incapable of undertaking remunerative work otherwise than on part-time basis or intermittently – applicant, by reason of incapacity from war-caused diseases alone, prevented from continuing to undertake remunerative work and thereby suffering loss of salary or wages – applicant not eligible for special rate of pension – applicant eligible for intermediate rate of pension – decision under review set aside

Veterans’ Entitlements Act 1986 (Cth), s 19, s 23, s 24 and s 28

Chambers v Repatriation Commission [1995] FCA 1144; (1995) 55 FCR 9

Defence Force Retirement and Death Benefits Authority v House [1989] FCA 516; (1989) 22 FCR 138

Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1

Forbes v Repatriation Commission [2000] FCA 328; (2000) 101 FCR 50

Repatriation Commission v Butcher [2007] FCAFC 36

Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47

REASONS FOR DECISION

30 May 2007

Deputy President S D Hotop

INTRODUCTION

1. Ian Frank Armitt (“the applicant”) enlisted in the Australian Regular Army, pursuant to the National Service Act 1951 (Cth), on 28 January 1970 and he served in Vietnam from 27 August 1970 to 12 August 1971. He was discharged on 15 November 1971.
2. On 8 December 2003 the applicant was granted a disability pension under Pt II of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”) in respect of various war-caused injuries and diseases (including post-traumatic stress disorder (“PTSD”)). He was paid disability pension at the rate of 80% of the “general rate”, pursuant to s 22 of the VE Act, with effect from 7 May 2003.
3. On 23 July 2004, however, the applicant applied for an increase in the rate of his disability pension. On 21 September 2004 the Repatriation Commission (“the respondent”) made a decision in which it determined that the rate of the applicant’s disability pension be increased to 90% of the “general rate”, with effect from 23 July 2004, but that the applicant was not eligible for payment of disability pension at the “special rate” pursuant to s 24 of the VE Act or at the “intermediate rate” pursuant to s 23 of the VE Act. The respondent’s decision was affirmed by the Veterans’ Review Board (“VRB”) on 19 April 2005.
4. The applicant has applied, under s 175(1) of the VE Act, to this Tribunal for a review of the decision of the respondent that was affirmed by the VRB.

THE ISSUE AND THE TRIBUNAL’S DETERMINATION

5. The issue for the Tribunal’s determination is whether the applicant is eligible for payment of his disability pension at the “special rate” pursuant to s 24 of the VE Act or at the “intermediate rate” pursuant to s 23 of the VE Act.
6. For the reasons which follow, the Tribunal has determined that the applicant is not eligible for the “special rate” of pension pursuant to s 24 of the VE Act, but that he is eligible for the “intermediate rate” of pension pursuant to s 23 of the VE Act.

THE EVIDENCE

7. The evidence before the Tribunal comprised:
   • the “T Documents” (T1-T27, pp 1-122) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
   • Supplementary Documents (comprising 5 volumes, pp 1-1544) tendered by the respondent (Exhibit R1);
   • various documents tendered by the applicant (Exhibits A1-A7) and by the respondent (Exhibits R2-R11); and
   • the oral evidence of the applicant and of each of the following witnesses:
     • - Dr Oleh Kay, Dr Andrew Howes, Dr Gregory Deleuil, Dr Kim Stanton, and Sherryle Armitt (who were called by the applicant); and
     • - Kenneth Nicolson, Anthony Mettam, Dr Julia Charkey-Papp, Dr Christopher Hammersley, and Ian Gibson (who were called by the respondent).

THE FACTUAL BACKGROUND

8. The relevant background facts, which are not in dispute and which are found by the Tribunal on the basis of the evidence before it, are as follows.
9. The applicant, who is presently 58 years of age, left school at the age of 15 years (having completed Year 10) and completed a 5-year apprenticeship as a carpenter and joiner in the period 1965-1969.
10. The applicant commenced his national service in the Army in late January 1970 and was selected for the Army engineers. During his period of service in Vietnam from August 1970 to August 1971 he was posted to 22 Construction Squad as an engineer/carpenter and joiner and was engaged in renovation work at a hospital and in housing construction, and he then spent his last few months in Vietnam working in the carpenters’ workshop at the Base in Nui Dat before returning to Perth in August 1971. After completion of his national service in November 1971 he initially worked as a carpenter for a short period and subsequently as a scaffolder for about 18 months until he “lost his nerve” and was unable to cope with working at heights.
11. On 2 July 1973 the applicant joined the Western Australia Police Force and he was initially stationed at Central Police Station in Perth for approximately 1 year and then at Nollamara Police Station (Perth) for about 5 years.
12. The applicant then completed approximately 25 years’ service at rural police stations in Western Australia as follows:
    • 1979-1982 – Jurien Bay;
    • 1982-1984 – Roebourne;
    • 1984-1985 – Merredin;
    • 1985-1988 – Boyup Brook;
    • 1988-1993 – Albany;
    • 1993-1998 – Dongara;
    • 1998-2000 – Kalgoorlie;
    • 2000-2004 – Carnarvon.
13. During his police service, the applicant was promoted to the following ranks: First Class Constable (1978), Senior Constable (1982), Sergeant (1988), and First Class Sergeant (1991).
14. On 28 September 1983, when the applicant was stationed at Roebourne Police Station, he was involved in an incident in which an aboriginal person named John Pat died while in police custody. Following a coronial inquest the applicant and 4 other police officers were committed to stand trial, in the Supreme Court of Western Australia sitting in Karratha, for the manslaughter of John Pat. The trial commenced on 30 April 1984 and, on 23 May 1984, the applicant and his 4 co-accused were acquitted.
15. On 17 July 2003, when the applicant was working as a police prosecutor at the Onslow Court, an officer of the Department of Justice made a complaint of sexual harassment on the part of the applicant comprising alleged improper conduct by him towards her on 21 May 2003, 26 June 2003 and 17 July 2003. On 24 July 2003 the applicant was relieved of his prosecution duties but continued to perform his duties as a Sergeant at Carnarvon Police Station. Following an internal investigation by the Western Australia Police Service, in an Internal Investigation Report dated 24 October 2003 the investigating officer found that each of the abovementioned allegations of improper conduct was sustained and recommended that the matter be referred to the Commissioner of Police “to consider a loss of confidence nomination”.
16. In the meantime the applicant, on 7 August 2003, lodged with the Department of Veterans’ Affairs (“DVA”) a claim for disability pension under the VE Act in respect of 12 “disabilities” (including PTSD, alcohol abuse, irritable bowel syndrome, anal fissures, neck pain, hypothyroidism and sleep apnoea) which he claimed were war-caused. On 8 December 2003 the respondent accepted the applicant’s claim in respect of the following “disabilities”:
    • PTSD;
    • alcohol abuse;
    • irritable bowel syndrome;
    • anal fissure;
    • bilateral sensorineural hearing loss;
    • gout;

but it rejected his claim in respect of the following “disabilities”:

• fracture of the 3rd right metatarsal;
• cervical spondylosis;
• hypothyroidism;
• sleep apnoea;
• obesity.

17. On 19 November 2003 a Review Officer was appointed for the purpose of conducting an inquiry and preparing a report in the course of the Loss of Confidence Review Process pursuant to s 8 of the Police Act 1892 (WA) (“Police Act”) in respect of the applicant. On the same date a Loss of Confidence Nomination was made in respect of the applicant pursuant to s 8 of the Police Act. On 25 November 2003, a Stand Down Notice, signed by the Commissioner of Police, was served on the applicant whereby he was stood down (on full pay) from all duties pending the completion of the abovementioned inquiry.
18. On 23 February 2004 the Review Officer made a report in which he concluded that the Commissioner could form the view that:

“the course of conduct displayed by [the applicant] is such that there is reason to be concerned as to his ability to conduct himself with integrity and honesty in his role as a Non-Commissioned Officer of the WA Police Service.”

19. On 18 March 2004 a Notice of Intention to Remove from Police Force (Service) of Western Australia (Section 8 of the Police Act 1892), dated 13 March 2004 and signed by the Commissioner of Police, was served on the applicant by Inspector K Nicolson.
20. By letter dated 31 March 2004 the applicant’s solicitor informed the Commissioner of Police that the applicant had been “progressing a retirement from the WA Police Service on medical grounds” and requested that the determination of the matter of the applicant’s removal from the Police Service on “loss of confidence grounds” be delayed until the Police Medical Board had considered the matter of his medical fitness for duty.
21. On 20 April 2004 a Medical Board (comprising Dr K Stanton, Dr G Phillips and Dr H Stampfer) reported that it accepted that the applicant was “unfit to work as a police officer”.
22. By letter dated 28 April 2004 the applicant’s solicitor forwarded to the Commissioner of Police the applicant’s response to the Commissioner’s Notice dated 13 March 2004.
23. On 10 May 2004 the Commissioner of Police agreed with a recommendation made to him by an Assistant Commissioner that the “Loss of Confidence process” in respect of the applicant be “superseded by [his] medical discharge”.
24. On 15 June 2004 the Commissioner of Police issued a Notice under
    s 33L(3)(b) of the Police Act notifying the applicant that he intended “to immediately recommend to the Minister for Police and Emergency Services that she approves [his] removal on medical grounds”. On 15 June 2004 the Commissioner wrote to the Minister as follows:

“A Medical Board convened under regulation 1402 of the Police Force Regulations 1979, and held on 20 April 2004 found First Class Sergeant Ian Frank Armitt 4802 is unfit to work in the Western Australia Police Service due to Post Traumatic Stress Disorder which has resulted in some permanent disabilities.
First Class Sergeant Armitt is 55 years of age and has been a member of the Western Australia Police Service since 2 July 1973, serving his career in both the metropolitan area and country stations. For the last 4 years of service he was attached to the Carnarvon Police Station.
The Government Employees Superannuation Board has been informed of the Medical Board’s opinion that First Class Sergeant Armitt has a permanent disability.
I am satisfied that First Class Sergeant Armitt should be retired on medical grounds from the Western Australia Police Service within the meaning of section 8 of the Police Act. Section 8 authorises the Commissioner, subject to the Minister’s approval, to remove any non-commissioned officer or constable from the Western Australia Police Service. Accordingly, I seek your approval to retire First Class Sergeant Armitt from the Western Australia Police Service on medical grounds.
The requirements of Section 33L of the Police Act have been complied with and First Class Sergeant Armitt may now be removed from office.”

Approval was granted by the Minister on 9 July 2004.

25. The applicant was retired from the Western Australia Police Service on medical grounds on 20 July 2004.

THE APPLICANT’S EVIDENCE

26. The applicant confirmed that he had signed a statement dated 31 October 2005 for the purpose of these proceedings and that its contents are true and correct. The statement refers to the applicant’s schooling, his Army service, his immediate post-service employment history, and his commencement of employment with the Western Australia Police Force, and continues as follows:

“...

28. I served a total of over 31 years in the WA Police Force.
29. While at Dongara in the mid 1990s I was placed under a great deal of stress in my position as OIC of the Station. Some of the stress came from attending several serious and fatal traffic crashes in the area. I had many verbal altercations with my bosses in Geraldton.
30. When my 5 years at Dongara were up, I was refused a transfer to Geraldton, but I was transferred to Kalgoorlie where I was working under different bosses.
31. I had several arguments with bosses and staff in Kalgoorlie and in mid 2000 I was transferred to Carnarvon where I worked as a Police Prosecutor.
32. Soon after Remembrance Day 2003 I went on stress leave with the Police Force until 15 June 2004 when I was given a Notice of Intention to Remove due to my post-traumatic stress disorder.
33. In Carnarvon, I worked mainly alone and worked at the Courts most of the time.
34. On Wednesdays I acted as a Motor Drivers’ Licence examiner. I took three or four learner drivers out each week for driving tests.
35. In this way I had little to do with other staff and kept to myself a lot of the time.
36. I was stressed most of the time and after becoming very ill, I was diagnosed with irritable bowel and hypothyroidism. I have to take tablets every day for hypothyroidism.
37. In early 2003 after a long period of having continuous anal fissures, I’d had an operation at Carnarvon Hospital to fix the problem.
38. I’d had this problem for many years and had visited many doctors who had only ever prescribed laxatives and herbal remedies.
39. These three conditions and my PTSD were all accepted in my original claim.
40. During 2002, my nightmares and lack of a good sleeping pattern had become worse and my wife insisted that I do something about my problem.
41. My children did not visit, mainly I believe, because of my lack of control and patience with my grandchildren.
42. My relationship with my wife was becoming estranged and I eventually arranged an appointment through a local DVA Advocate in Carnarvon to see a psychiatrist, Dr Oleh Kay at Exmouth.
43. This was in or about mid 2003.
44. After my first visit to Dr Kay, he prescribed sleeping tablets and tablets for stress. I still continue to see Dr Kay.
45. I could feel myself going downhill fast. I was having confrontations at work and was chastised by the Magistrate on more than one occasion in respect of my aggressive questioning of witnesses and my behaviour in Court.
46. I had several weeks sick leave during 2003 and spent my time off work wondering about my life and whether I had a job, and when I returned to work, if I could cope.
47. I had no other skills and so changing jobs seemed to be almost out of the question.
48. I thought about a job in security, but this seemed out of the question because of my difficulty in dealing with the public and my verbal outbursts.
49. After I started taking Celaphram for stress, I was able to control myself a lot more and trained myself to walk away before a confrontation and cool off.
50. I stopped socialising and going to functions to prevent a confrontation. This caused me to drink more alcohol at home and sometimes I became very drunk.
51. In November 2003 I went on sick leave. This was after the November 11 Remembrance Day Parade, where I had flashbacks. I was still seeing Dr Kay. Things had become so bad that Dr Kay recommended I cease work in January 2004.
52. I handed a copy of Dr Kay’s letter to the Police Service and remained on sick leave until I ceased my employment on 19 July 2004, when I received a Notice of Intention to Remove.
53. In December 2003 I was granted an 80% pension that was backdated to my original application date.
54. After my employment with the Police Service was terminated due to my post-traumatic stress disorder (‘PTSD’), I lodged an application to have my pension reassessed and sought an increase to the special rate.

...

66. Although my pension was increased from 80% to 90% of the general rate, I was refused a pension at the special rate.

...

72. I now seldom leave my home. I am still stressed and some days sit on the toilet for hours because of the irritable bowel.
73. I now take Colfac tablets for constipation, which prevent further occurrences of anal fissures, but the downside of this treatment is that there is a lack of warning when I need to go to the toilet. However, I would rather have this than anal fissures.
74. The VRB has refused my claim [for] upper back/shoulder pain, however, they have agreed to supply me with Arthroaid tablets for arthritis. I believe the heavy manual work in South Vietnam contributed to these injuries.
75. Since I have been taking Colfac tablets I do not get lower back pain.
76. I do not have to drive the 900 kilometres from Carnarvon to Perth anymore, so I very seldom have any lower back pain.
77. The pain that I did get did not stop me from doing my job. I was able to perform my duties as a Police Officer by concentrating on performing office and court based work rather than going on patrol
78. Since my application for the special rate was refused, I attempted to obtain work at a local hardware store that advertised two positions. I applied because I was suffering financially due to the loss of my Police wages. The cost of my transferring back to Perth was financially draining.
79. One job I applied for at the Hardware Store was as a security officer.
80. The job involved dealing with the public as it was necessary to check customers’ vehicles and persons when leaving the yard. It involved weekend and Public Holidays only and was part-time.
81. At the Appeal hearing on 19 April 2005 the jobs at the Hardware Store were discussed. In their decision, they stated that as a security officer, I would be working alone. They obviously presumed I would be working as an after hours security officer inside the locked gates, which is incorrect.
82. The other job was as a truck driver and at the time of applying, I do not think I could have done the job. My irritable bowel and lack of bowel control was a major factor. I applied for the job because of my financial need.
83. I was not told I was too old. I just felt at the time of the interview that they were looking for a younger person.
84. I have seen a man in his early 20s driving the truck so I presumed they did not employ me because of my age. There were at least three other applicants that I know of.
85. During both interviews, my medical conditions were discussed.
86. Another accepted disability is loss of hearing and tinnitus in the ears. I often have difficulty hearing certain tones. There is no cure for tinnitus, only methods of controlling it. Sleeping tablets enable me to get to sleep, but if for some reason I wake up, I can’t get back to sleep.
87. Because of my PTSD I rarely drive. If I need to go to the City I catch the bus or have my wife drive me to appointments.
88. If I have to leave the house for a period of time I have to consider toilet stops. I use my medication, namely Colfac so I can time when I require a toilet stop.

...” (Exhibit A1)

27. In examination-in-chief the applicant was questioned about the effect (if any) of certain of his ailments on his work performance as a police officer. He said that:
    • his alcohol consumption did not cause him any problems because he “never used to drink at work”;
    • although his hypothyroidism made him feel lethargic, he did not take time off work, apart from “the odd day”, by reason of that condition;
    • his back and neck problems did not cause him to take time off work;
    • his irritable bowel syndrome and anal fissures caused him substantial discomfort at work;
    • his PTSD did “not really” affect his work because he was “able to switch on, switch off”, but he did take leave, from time to time, because of stress which he experienced at work.
28. The applicant said when he was stationed in Carnarvon in 2000 he commenced consulting a local general practitioner, Dr Howes. He said that early in 2003 he spoke to Dr Howes regarding PTSD, and he had a discussion about PTSD with a woman from the Vietnam Veterans’ Counselling Service who was visiting Carnarvon, and he subsequently saw Dr Kay, Psychiatrist, in relation to PTSD in late 2003. He said that at the Remembrance Day march in November 2003 at Carnarvon (after he had commenced seeing Dr Kay) he “just, sort of, lost it” and started to think more about Vietnam. He said that he then consulted Dr Kay who gave him a letter saying that he should cease work.
29. The applicant was also questioned about an incident on 17 July 2003 involving a community justice officer when he was engaged in prosecuting duties at Onslow Court (referred to in paragraph 15 above). He said that, notwithstanding the loss of confidence process that was commenced as a result of that incident, he did not believe that this would result in his losing his job, but rather a possible fine, or demotion or a transfer back to Perth. He said that he was then being represented by the Police Union solicitor and that they had prepared a written submission to the Commissioner which they believed addressed the Commissioner’s concerns, and that he thought that his “good record... would stand on its own”.
30. In cross-examination the applicant confirmed that all of the statements which he has made to doctors and the DVA in connection with his claim for a disability pension under the VE Act and in his evidence to the VRB are true.
31. The applicant was questioned in detail about his service in the Western Australia Police Force/Service since 1973. Suffice it to say that the applicant’s answers to those questions indicated that he generally performed competently and was promoted at the same rate as his peers, and took little sick leave, for the duration of his service until November 2003.
32. As regards his posting to Carnarvon Police Station in July 2000, the applicant confirmed that when he arrived in Carnarvon he worked very hard, made new friends and engaged in social activities, and was involved in the police social club. As regards medical consultations, he confirmed that:
    • he first attended the Carnarvon Medical Centre (“CMC”) in August 2000 for an abscess under his arm;
    • he next attended the CMC in May 2002 for neck pain;
    • he consulted Dr Howes at the CMC in March 2003, following a trip to Bali, complaining of, inter alia, lethargy, and he was subsequently diagnosed with hypothyroidism;
    • he attended the CMC in April 2003 complaining of longstanding pain from anal fissures, and he underwent surgery for that condition in June 2003.
33. The applicant confirmed that, following the complaint of sexual harassment made in relation to him on 17 July 2003, he was served by Acting Senior Sergeant Gibson with a notice that he was relieved of his prosecution duties (see paragraph 15 above). He acknowledged that he was distressed about the way this had been done, and that he had said to Sergeant Gibson that, if his police career was over, he would “have to look for something else”.
34. The applicant confirmed that he had completed a Lifestyle Questionnaire form which he had lodged, together with his claim for a pension, with the DVA on 7 August 2003. In that form the applicant stated that, inter alia, he had taken 6-10 days’ “stress leave” during the previous 12 months. When it was put to the applicant that that statement is incorrect, he maintained that that statement is correct and he added that he had consulted Dr Howes or other doctors at the CMC in relation to stress during that period. He acknowledged, however, that the period of “several weeks sick leave during 2003” referred to in para 46 of his statement dated 31 October 2005 (Exhibit A1, set out in paragraph 26 above) was in fact a period of 3 weeks’ annual leave which he took in August 2003.
35. The applicant acknowledged that he felt “upset” and “devastated” by the sexual harassment complaint which had been made against him on 17 July 2003. He further acknowledged that, although he did not expect to lose his job as a result of that complaint, he felt that his career in the police force was “stuffed” because he expected that he would not receive any further promotions because of that complaint. The applicant also referred to another matter which had arisen out of the sexual harassment complaint, namely, that he had failed to disclose to senior officers the name of a person in the Geraldton District Office who had, by telephone, given information to him about the complaint. He said that he was more concerned about that matter than he was about the sexual harassment complaint itself because that was the kind of matter that might have resulted in his removal from the police force.
36. The applicant said that he saw Dr Kay, Psychiatrist, on 2 occasions in late October 2003. He maintained that he then told Dr Kay about the abovementioned sexual harassment complaint, although he accepted that Dr Kay did not mention it in his contemporaneous clinical notes or in his report of 8 November 2003.
37. The applicant confirmed that he took one week’s recreation leave from 10 November 2003. He said that he went to the “ANZAC Day parade” (sic) on 11 November and he added:

“... and it was at the ANZAC parade (sic) there that I had a breakdown and I went home in a complete mess and I was basically just - I just lost it after the ANZAC day parade (sic) when they brought up certain things that the - or didn’t bring up certain things at the parade.
And that’s what you described earlier, that you were disgusted and angry?---I was totally disgusted, went home and that was it. I didn’t venture out of the house for about the whole week.” (Transcript, p 89)

38. The applicant confirmed that he was served with a Stand Down Notice by Senior Sergeant Mettam, although he could not recall the date (25 November 2003 – see paragraph 17 above). He confirmed that he was visited at home on the next day by Sergeant Mettam and Sergeant Gibson. He said that he was “upset” and that he had told them so. He added that he is “still upset today”.
39. The applicant confirmed that he consulted Dr Howes on 2 December 2003 because he was “stressed”. Asked whether he was stressed because he had been stood down, he said that he was still upset about Remembrance Day and was more upset about that than about being stood down. His cross-examination on that matter continued:

“What I’m putting to you is that any stress that you were experiencing was totally related to the fact that you were stood down and clearly about to be the subject of a loss of confidence proceedings?---I was suffering - diagnosed with PTSD well before that. The girl from Vietnam Veterans Counselling Service, she’d actually interviewed me for about an hour and said I had the symptoms and she wanted me to go Easter (sic), which is three months before the incident up in Onslow. Nothing to do with July onwards. That was an incidental thing, and probably if I wasn’t suffering from PTSD from Vietnam then, maybe things might have been a bit different on that day.” (Transcript, p 91)

THE MEDICAL WITNESSES

Dr Andi Howes

40. Dr Howes said that he has been practising as a general practitioner in Carnarvon since 1999 and that he first saw the applicant in 2000 and has seen him on a number of occasions since then.
41. Dr Howes confirmed that he saw the applicant on 20 March 2003 about stress-related matters and irritability and that he was then forming the view that the applicant may have PTSD-related problems. He also confirmed that at a consultation on 27 March 2003 he noted that the applicant “gets irritable at times” and he thought that the applicant may have been suffering from PTSD. He said, however, that he did not make a diagnosis of PTSD at that time, and he added that he “generally leave(s) that up to the psychiatrist”.
42. Dr Howes confirmed that, when he was treating the applicant, he was not aware that any police disciplinary proceedings were being taken against him.
43. In cross-examination Dr Howes confirmed that the applicant consulted him on 18 March 2003 in relation to lethargy, dry retching and diarrhoea, and that on 26 March 2003 the results of a blood test were received which indicated that he had a thyroid problem. Dr Howes agreed that symptoms of hypothyroidism include lethargy and constipation, but he said that irritability is associated more with hyperthyroidism than with hypothyroidism. He added:

“The irritability is more what we see with the Vietnam vets where they get nappy and that is why I wrote there:
Gets irritable at times. Is this PTSD?
Hey, warning bells were ringing at that stage.” (Transcript, p 178)

44. Dr Howes was referred to his clinical records regarding the applicant as at 6 September 2006 in which, under the heading “Past Medical History”, there appears, inter alia, the following entry:

“2003 PTSD”.

His cross-examination then continued:

“So that’s when it was diagnosed?---That’s when I probably put it down there and then I think it was confirmed by Dr Oleh Kay. So it just says 2003, yes, I believe towards the end of 2003 the diagnosis was probably made and confirmed.
Yes and that accords with the notes we’ve just been through, that the first time there is any mention of the words of stress, or PTSD in 2003, that’s correct?---That’s correct.” (Transcript, p 180)

45. The Tribunal notes that the following report of Dr Howes, dated 11 February 2004, addressed to the Western Australia Police Service, Health and Welfare Branch, is contained in the T Documents:

“Thank you for your letter of 230104.
I believe you have a copy of the letter from the psychiatrist, Dr Oleh Kay, dated 201203. He is quite clear that Mr Armitt should not return to work because of accepted war caused disabilities.
His prognosis is poor and he will not be able to return to his position as a Police Prosecutor/Sergeant.
He is currently on Cipramil, sleepers and thyroxine.
I believe that medical retirement is essential.” (T21)

Dr Oleh Kay

46. Dr Kay, Psychiatrist, said that he first saw the applicant at the request of the DVA in 2003 and he subsequently prepared a report for the DVA. The contents of that report, dated 8 November 2003, are as follows:

“Mr Armitt was referred by Dr Johan Yin, Departmental Medical Officer, for a psychiatric assessment in respect of a claim he has lodged for benefits for PTSD, Anxiety Disorder and Substance Abuse/Dependence.
I have examined Mr Armitt on 3 occasions, initially on the 23rd October 2003 for approximately one hour and subsequently on the 24th October and 8th November 2003 for approximately half an hour each.
Mr Armitt is a 54 year old, married, Police Officer. He told me he had submitted a claim for psychiatric symptoms he realises he has had for many years. He was a national serviceman, who served as a carpenter in Vietnam 1970-71.
The incident which most distresses Mr Armitt and of which he says he has frequent nightmares was -
when he and 4 other soldiers spent the night about 400m to 500m away from the perimeter fence at Nui Dat near SASR Hill at a listening post. They had set up Claymore mines and heard in the distance a noise coming towards them. They radioed the SAS, were told to pull back which they did, then maintained radio silence. The noise gradually increased in intensity and they could make out Western music and Americans talking to each other until a group of some 10 to 12 American soldiers made their way past and continued on their way. Nothing happened, but Mr Armitt was terrified and was concerned about what may have happened. He has no explanation as to what a group of American soldiers would be doing under such circumstances in the middle of Phuc Toy province. Mr Armitt was visibly distressed when talking about this experience, which he estimates lasted about 20 minutes, but seemed to last considerably longer.
Mr Armitt described another incident whilst he was involved in the construction of a morgue in a rural hamlet and saw a number of bodies, but this was not an incident which was particularly distressing at the time.
Although Mr Armitt spent most of his time at Nui Dat, when extra soldiers were needed he would go out to assist. He estimates he went out with APCs about 3 or 4 times and on at least one of these occasions he was involved in the retrieval of an APC which had hit a mine. He remembers one particular APC where parts of the soldiers could be seen on sharp and protruding objects within the APC.
He also remembers another occasion when he was involved in building a windmill in the countryside, when a battle erupted nearby involving South Vietnamese soldiers and, presumably Viet Cong and, afterwards, on leaving, Mr Armitt saw the bodies of 3 or 4 South Vietnamese soldiers on the side of the road.
Mr Armitt went on to say that during his time in the WA Police Service, he has seen many horrific things, but none of them seem to have bothered him as much as the experiences he had whilst in Vietnam. He described -

• problems with sleep,
• night sweats,
• restlessness,
• bad dreams relating to his Vietnam experiences,
• a dislike of talking about Vietnam,
• great intolerance of Asians, particularly Vietnamese, something which causes him considerable worry as he is now stationed at Carnarvon where there is a large Vietnamese population on the plantations and he is worried he may do something and end up being charged,
• he describes symptoms of hypervigilance when he is near Asians and,
• general autonomic arousal.

Mr Armitt was recently commenced on sleeping medication by his General Practitioner and for many years he has used alcohol to settle his nerves.
Mr Armitt was born and grew up in Kalgoorlie, the middle of a sib-ship of 3. His father, now deceased, was a fireman on boilers in Kalgoorlie, but had no overseas service during WWII. His mother recently died at the age of 93. Mr Armitt didn’t leave Kalgoorlie until he was called up for national service. On his return from Vietnam, he worked in various trades until he lost his nerve as a scaffolder in 1973 then joined the WA Police Service. He has subsequently worked in many country locations.
Mr Armitt is married to Sherryle, aged 49 and they have 2 daughters, now living in Bunbury and Cunderdin.
I am of the opinion that Mr Armitt has been psychiatrically affected by his experiences in Vietnam. Although (as he freely admits), he didn’t have exposure to particularly gruesome events as others did, I do believe that the time he saw the bodies of South Vietnamese soldiers would constitute an appropriate stressor and he fulfils sufficient of the remaining symptoms to warrant the diagnosis of Post-Traumatic Stress Disorder as per the DSM IV. Specifically I am of the opinion that he fulfils the following:
A - 1&2
B - 1&2
C - 1,2&6
D - 1,2,3,4&5
E & F.
In addition to his PTSD, Mr Armitt is a heavy, if not problem drinker and... I believe an argument can be made that he also fulfils the diagnosis for Substance Abuse - Alcohol on the basis that his consumption is deleterious to his health.
In terms of an impairment rating as per GARP V criteria, I believe the following apply.

Table 4.1	Subjective Distress	10	Very frequent symptoms cause Mr Armitt at least moderate distress.
Table 4.2	Manifest Distress	6	Mr Armitt’s distress is apparent on occasion, especially when talking about his experiences.
Table 4.3	Functional Effects	2	Mr Armitt is uncomfortable in the presence of Asians and as a consequence does not engage in certain social activities.
Table 4.4	Occupation	1	Mr Armitt requires the occasional day off work due to his symptoms.
Table 4.5	Domestic Situation	1	Occasional friction with family members.
Table 4.6	Social Interaction	3	Significant reduction in social interaction.
Table 4.7	Leisure Activities	3	Significant reduction in recreational activities.
Table 4.8	Current Therapy	3	Mr Armitt would benefit from further psychiatric treatment, at least in the form of medication.
Impairment Rating = 25 points		[10 + 6 + 3 + 3 + 3]

...” (T4)

47. Dr Kay said that, following his assessment of the applicant’s psychiatric condition at the request of the DVA, he commenced treating the applicant following a referral from Dr Howes in December 2003. He said that he continues to treat the applicant and has been seeing him approximately monthly.
48. Dr Kay provided a report, dated 20 December 2003, to Dr Howes as follows:

“Thank you for referring Ian, who was sent to me by the Department of Veterans’ Affairs and I enclose a copy of my report.
On examination today, Ian’s state has clearly worsened. He reports that he is only sleeping a maximum of 2 hours per night and is feeling despondent most days.
I have commenced Ian on Cipramil and Imovane, both on a nocté basis and have made an appointment for him to see me when he is in Perth (his mother in law has been diagnosed with either pancreatic or bile duct carcinoma and is about to have major surgery).
I have also advised Ian that, in my opinion, as a result of his PTSD and secondary Depression, he is no longer fit for work and for this reason, I am advising him to cease work.
...” (Exhibit R1, p 56)

In addition Dr Kay provided a letter, dated 20 December 2003, to the applicant as follows:

“This letter is to confirm my advice to you to cease work because of your accepted war caused disabilities. In my opinion, you are totally & permanently incapacitated for any form of work on either a part time or full time basis for which you are equipped by reason of training, experience or natural aptitude.” (T22)

Dr Kay confirmed that when he saw the applicant on 20 December 2003 his condition had deteriorated. He said that the applicant had described himself as “depressed” and told him that he had been “suspended”. He confirmed that it was his opinion at that time that the applicant was not fit for work due to his PTSD. He said that he was aware of the police disciplinary proceedings and that the applicant was “not happy” with the Police Service but he added that, although that was a matter “of concern” to the applicant, it was not his “major concern” and was not a “big topic of conversation” between them.

49. Dr Kay said that there was “no way in the world” that the applicant could now work as a police officer. He also confirmed that, in his opinion, the applicant could not work as a court orderly, a bailiff or process server, or a security officer, or in any occupation that “involves conflict” where his “behaviour is likely to be unpredictable” because of his irritability.
50. The Tribunal notes the following subsequent reports of Dr Kay which are in evidence before it:
    • A report, dated 2 February 2004, to the Western Australia Police Service, Health and Welfare Branch, as follows:

“In reply to your letter of the 23rd January, 2004, I advise that I reviewed Mr Armitt on the 31st January 2004.
Mr Armitt is continuing to receive treatment from me for his chronic Post-Traumatic Stress Disorder. He is currently on Citalopram 20mg daily and Imovane 1 per night.
Mr Armitt reports that his condition has improved somewhat since he has not been at work and, as a consequence of receiving treatment, however, whenever he is contacted by work, or is reminded of it, he tends to relapse for several days.
On the basis that Mr Armitt does not wish to return to work and is currently unfit to do so, I am of the view that his long term prognosis is: that he will not return to work.
...” (T20)

• A report, dated 22 November 2004, to the Government Employees Superannuation Board as follows:

“...
I now respond to your questions seriatim

• What is the history and diagnosis of the condition?

Mr Armitt is suffering from a chronic Post-Traumatic Stress Disorder in addition to Irritable Bowel Syndrome and faecal incontinence.

• What symptoms does Mr Armitt suffer?

Mr Armitt suffers from -

• sleeping difficulties to such an extent that he almost never enjoys a full, restful night’s sleep,
• nightmares, night sweats and restlessness,
• in the mornings, he is fatigued,
• poor memory and concentration,
• irritability and,
• a tendency to socially isolate himself.
• What treatment (ie: types/doses/procedures) has been provided, the duration and the outcome of the treatment, and if it has been optimum treatment?

Mr Armitt is receiving treatment from myself in the form of psychotherapy and he is on hypnotics to assist with sleep. When his condition has sufficiently stabilised, he may be suitable for further treatment through the specialised PTSD Program at Hollywood hospital, however, this is some way off at the present time.

• What limitations does the condition create and how do they affect Mr Armitt’s capacity to work?

In my opinion, Mr Armitt’s psychiatric symptoms interfere with his ability to work through problems with memory, concentration, motivation, regulating his mood, unpredictable irritability and avoidance of unfamiliar environments. In addition, Mr Armitt has physical problems consisting of an unpredictable toilet habit and a tendency to develop back pain. The combination of his psychiatric and physical problems greatly affect, to the detriment, Mr Armitt’s capacity for work.

• In your opinion, does Mr Armitt have the medical capacity for suitable alternative employment, such as the positions of “product assembler and wood product factory hand” as identified by APM as being within his vocational capabilities, or any other alternative employment?
  • If no, what is the justification for this opinion?

Although vocational assessment recognises that Mr Armitt has certain transferable skills, his capacity to successfully engage in alternative employment is greatly affected by his psychiatric and medical problems, eg, he has difficulty working with others, difficulty concentrating for any period of time and a tendency to over-react when frustrated. In addition, Mr Armitt’s physical problems also contribute to restrictions in any potential alternative work, eg, his bowel habit is irregular and he is limited in movement and weight carrying capacity. Given his history of these kinds of problems, I would have thought that suitable workers’ compensation insurance for Mr Armitt, would be difficult to find. In my opinion, therefore, by reason of his psychiatric and physical problems, Mr Armitt is incapable of working in an alternative occupation.
...” (Exhibit R1, pp 35-36)

• A report, dated 18 August 2005, “to whom it may concern”, as follows:

“I am continuing to treat Mr Armitt for Chronic Post-Traumatic Stress Disorder. He remains on pharmacotherapy in the form of Citalopram 20mg daily and also Imovane. He has ceased work because of his Post Traumatic Stress Disorder and despite continued treatment from me he continues to manifest significant symptoms compatible with his PTSD.
In my opinion he is unable to work because of his PTSD and his PTSD prevents him from looking for alternative work.” (Exhibit A6)

• A report, dated 27 February 2006, “to whom it may concern”, as follows:

“This is to certify that I am continuing to treat Mr Armitt for a chronic war caused Post Traumatic Stress Disorder. He has not worked since November 2003, and he retired as a Police Officer in July 2004. His psychiatric state remains essentially unchanged, and he remains unfit for work.” (Exhibit R1, p 19)

51. In cross-examination Dr Kay confirmed that, on the basis of the history given to him by the applicant in the initial consultations on 23 and 24 October 2003 and
    8 November 2003, he assessed his impairment rating in relation to employment activities as 1 (in a range of NIL - 5), commenting that he “requires the occasional day off work due to his symptoms” (as stated in his report of 8 November 2003), and he assessed his lifestyle effects rating as 25 which he described as:

“...towards the lower end of the spectrum – symptoms... not having a great effect on occupational and family life.” (Transcript, p 152)

52. Dr Kay confirmed that he next saw the applicant on 20 December 2003 on referral by his general practitioner, Dr Howes. He said that in his clinical notes relating to that consultation he had recorded that (inter alia):
    • the applicant was sleeping 2 hours per night;
    • his sleep was poor;
    • he was depressed;
    • he had been suspended (from duties in the police force);
    • “I would like to go back to work but don’t think [I] can”.

Dr Kay said that the last abovementioned statement, which had been made by the applicant, related to his psychiatric state, not to the fact that he had been suspended from duties.

53. Dr Kay agreed that the applicant had never discussed with him any attempts to find work and he said that he did not believe that the applicant had shown any interest in wanting to work.
54. It was put to Dr Kay that the applicant, during the course of his police service, had received laudatory reports from his superior officers and from members of the public. Dr Kay’s evidence continued:

“... I’ve seen lots of people who have had laudatory reports and when it falls apart, it falls apart, big time.
He hasn’t fallen apart?---Him? Yes, absolutely.” (Transcript, p 162)

55. Dr Kay described the applicant’s PTSD symptoms as “moderate”.
56. In re-examination Dr Kay confirmed that he was unequivocally of the opinion that the applicant’s symptoms are due entirely to his PTSD condition and are not due to hypothyroidism or sleep apnoea. He summarised his opinion regarding the applicant as follows:

“My view is that post traumatic stress disorder is primarily attributable to his service in Vietnam. That he coped well for a long period of time afterwards, but clearly there were symptoms. He started becoming intolerant of heights, becoming claustrophobic in confined spaces where previously he’d worked underground and so forth. He’s clearly had some symptoms but he compensated well for them. When I saw him, he wasn’t doing as well as he had been and subsequently he became worse. This was tied up with the whole issue of him leaving the police force and disciplinary matters and, yes, he had traumatic experiences as a police officer and, yes, they got sort of mixed up in his mind in relation to his stuff in Vietnam, but that his PTSD is primarily as a result of his wartime service, and that how he is now, he’s not fit for work, not only because of his PTSD, because he has other accepted disabilities.” (Transcript,
p 168)

57. Dr Kay confirmed that he had described the applicant as “falling apart”. His re-examination continued:

“What is your view of the cause of him falling apart?---His post traumatic stress disorder. That’s the ultimate cause. But, I mean, clearly there are multiple other factors that contributed to it towards the end of his police service. I think clearly facing these sorts of disciplinary matters is going to aggravate a pre-existing condition. But if he didn’t have that pre-existing condition he may (a) have not got himself into the predicament, or (b) have coped with that scenario completely differently...” (Transcript, p 170)

Dr Julia Charkey-Papp

58. Dr Charkey-Papp, Consultant Psychiatrist, said that she had assessed the applicant on 2 occasions at the request of the respondent’s solicitors and had subsequently provided a report of each assessment to those solicitors. Those 2 reports, dated 19 July 2006 and 15 January 2007, respectively, were tendered in evidence by the respondent (Exhibits R8 and R9, respectively).
59. In her report of 19 July 2006 Dr Charkey-Papp set out details of the history provided to her by the applicant (including his service in Vietnam, his current symptoms and treatment, his past medical history, his family history, and his personal and social history including his police service), described his mental status examination and summarised her opinion as follows:

“On balance of the evidence, as presented to me and gleaned from this assessment, ultimately corroborated with the extensive information obtained from the documentation kindly supplied, I reached a conclusion that Mr Armitt did indeed suffer from a mild, partially treated Post-Traumatic Stress Disorder (PTSD).
My opinion is that his psychiatric condition developed as a direct and material consequence arising from his service in Vietnam during 1970 and 1971. Mr Armitt has developed a secondary reliance on alcohol, amounting to the diagnosis of Alcohol Abuse.
This substance, used predominantly to ‘self-medicate’ against Mr Armitt’s symptoms and dysfunction, over many years undoubtedly made matters worse, but at the same time concealed the emotional issues at hand. Some losses however were greater than others and not even the alcohol could have mitigated (sic) against them.
Therefore, it is not surprising that the first occasion when he manifested above-threshold impairment around late 2003, prompting a referral to a psychiatrist, occurred around the same time when he also lost his elderly mother earlier that year.
...
Mr Armitt has responded well to the treatment prescribed and his PTSD is less prominent, with few residual symptoms. He should continue with treatment for at least another five years or even longer. Public holidays such as Remembrance Day or Anzac Day will represent important anniversaries, when short-lived deteriorations in symptoms and functioning might occur with the claimant.” (original emphasis)

In her report Dr Charkey-Papp then responded to questions asked of her by the respondent’s solicitors as follows:
“ kk

1. Does Mr Armitt currently suffer from PTSD and if so, what is the nature and extent of that condition?

It is my considered opinion as an independent medical examiner in the speciality of psychiatry that Mr Armitt is currently suffering from PTSD, which is relatively mild, and partially treated. Residual symptoms of the disorder are still present and cause significant distress and impairment to the claimant.
The above opinion is based upon a careful examination of the evidence presented to me, ultimately appraised on a balance of probabilities. Mr Armitt provided details of history, description of symptoms, complaints and impairment in multiple areas of functioning.
...

2. Has Mr Armitt been prevented on or after 23 July 2004 to date from continuing his paid work because of his accepted disabilities alone?

In this respect, please consider the following issues (if they are within your expertise):

1. Was Mr Armitt’s PTSD sufficiently severe at the time of cessation of work to prevent him from undertaking 8 hours of work a week?

Yes, it is my opinion that Mr Armitt’s PTSD was indeed sufficiently severe at the time of cessation of work to prevent him from undertaking eight hours of work a week, or more.
The grounds for this opinion are based upon Mr Armitt’s type of work, qualifications, training and experience, as well as his likelihood for retraining, rehabilitation and/or learning of new skills.
Hence, in my opinion it is more likely than not that Mr Armitt would not have been capable of working more than eight hours per week since July 2004 due to his symptoms of PTSD, especially due to the interpersonal difficulties manifesting with verbal aggression, rage, explosive outbursts, and friction with people around him.

2. Is it your opinion that Mr Armitt’s accepted disabilities alone are of such a nature that they render him incapable of working 8 hours per week? Please bear in mind that it is not only his work with the WAPS but also other types of work for which he may be suitable.

Yes, it is my opinion that Mr Armitt’s accepted disabilities alone and not only when taken in combination with the non-accepted disabilities render him incapable of working eight hours per week.
...

100. If Mr Armitt is prevented from continuing to undertake remunerative work, are the accepted disabilities including the PTSD the only factors preventing him from continuing to undertake that work?

It is my opinion that the ‘accepted disabilities’ alone are necessary and sufficient to cause Mr Armitt to be unfit and unable to undertake remunerative work. Indeed, the non-accepted disabilities would not be necessary neither (sic) sufficient as such to determine such an incapacity.
NOTE: You are not required to consider whether there are other causes that might render Mr Armitt unable to take remunerative work. Just whether the accepted disabilities alone are sufficient to render him unable to undertake such work.

4. If your answer to c) is yes, which of the accepted disabilities plays the most significant role in preventing Mr Armitt from working?

The most significant accepted disability is Mr Armitt’s PTSD. In my opinion, this would prevent Mr Armitt from working, not only as a police sergeant, but in other occupations as well (for which he could have the necessary qualifications, training or experience, or in which he could be trained). In view of his PTSD, retraining Mr Armitt would be a heroic challenge for both rehabilitation provider and claimant, in that his high levels of arousal and irascibility would undermine such efforts in a significant way.
Mr Armitt’s interpersonal functioning, as well as his day-to-day activities, his capacity for effective socialisation, his manner and capacity for discerning certain situations requiring a relatively unemotional appraisal, his exercise of patience or otherwise in dealing with the public, his problem solving skills and concentration levels, etc. would all be seriously affected.

5. Do you think Mr Armitt is prevented from obtaining work (assuming he is genuinely seeking it) due to any of the accepted disabilities other than his PTSD?

I do not think that Mr Armitt is prevented from obtaining work due to any other accepted disabilities apart from PTSD in a significant manner. Obviously, a degree of physical discomfort and pain arising from his irritable bowel syndrome, which is closely intertwined with his chronic anxiety disorder of the PTSD type, would also be a significant deterrent by the mechanism of pain, abdominal cramping, unpredictable bowel motions, etc.

6. Do you think Mr Armitt is prevented from obtaining work due to any of the non accepted disabilities?

No, I do not believe that Mr Armitt is or would be prevented from obtaining, seeking or securing work due to any of the non-accepted disabilities.
As mentioned above, it is my view that the main impediment and obstacle in Mr Armitt’s resumption of remunerative employment rests with his chronic PTSD, which resulted from his army service during 1970/1971.” (original emphasis)

60. Dr Charkey-Papp confirmed that, during her first assessment interview with the applicant (which lasted about 90 minutes), no mention was made of the death of John Pat in September 1983 and its aftermath, or of the sexual harassment complaint made against the applicant in July 2003 and its aftermath.
61. In her report of 15 January 2007 Dr Charkey-Papp described the circumstances relating to her second assessment interview with the applicant as follows:

“Thank you for your correspondence referring Mr Armitt for review. I confirm that I saw the claimant in company of his wife... on 11th January 2005. Similarly, I had the opportunity to review in depth and peruse the extensive documentation provided in a separate file, containing:

• A report and attached documents by Writeway Research Service Pty Ltd.
• Dr Howes’ clinical notes
• Dr Oleh Kay’s clinical notes
• Selected documents from summonsed documents of the Western Australian Police Service.
• Royal Commission into ‘Aboriginal Deaths in Custody – Report of the Inquiry into the Death of John Peter Pat’.
• Copy of report from Dr Oleh Kay, my psychiatric colleague, dated 8th November 2003.

On 11th January 2007, I re-interviewed Mr Armitt at length over a meeting which lasted over two hours. During this meeting, I also had the opportunity to interview Mr Armitt’s wife for approximately 20 minutes alone to gather collateral history.
The reassessment interview was aimed at clarifying the points raised in your correspondence, with special emphasis on the history provided by Mr Armitt on the occasion of the previous assessment, 24th May 2006.
I raised with Mr Armitt all issues and contentions mentioned in your correspondence, as well as in the investigative and medical documents supplied. Where appropriate, reference is made to my substantive report dated 19th July 2006, which has been submitted to your office and of which you are in possession.
The following details of history are those as provided by Mr Armitt and his wife, unless otherwise specified and the source of the information identified accordingly. Where any discrepancy arose between the history provided to me on this occasion and the details of your background investigation, medical notes, service and employment history, etc, these were brought to the attention of the Veteran and appropriate clarification was sought.
Overall, Mr Armitt came across yet again as a credible and genuine witness. He was disheartened by the fact that his claim for ‘TPI’ has been unsuccessful thus far.
He acknowledged that he had been anxious and apprehensive about a reassessment interview with the writer of this report. He stated that he had submitted his application exactly 129 weeks prior to our meeting. He displayed initially a restricted, withdrawn affect congruent with his statement. His hyper-vigilance, jitteriness and unease were visible. He had no problems with memory, in fact his recall for places, dates and time frames was exceedingly accurate, and his wife only had to correct him on couple of occasions with regard to placing events along a time line.
As the interview progressed and Mr Armitt realised that the content and process of the interview was non-threatening, but meant to establish facts and the reality of his problems if any, he relaxed significantly and provided information freely.
This was not unlike the first occasion, when he proved to be a willing historian who required little prompting in order to expand on his history and on the experiential burden of his life. Nevertheless, at the end of the interview, his wife remarked that during the two hours of the assessment with me talking about Mr Armitt’s issues, she heard more information about what happened in Vietnam than she had ever learned from her husband in over 30 years of marriage.” (original emphasis)

Dr Charkey-Papp then referred to the applicant’s current symptomatology as follows:

“Mr Armitt stated that he continued to experience distress at times, in the form of anxiety, which seemed to be a situationally triggered, general unease in certain situations, and feeling overwhelmed when in the presence of several people, even family members.
He affirmed yet again that his irritability and short temperedness was such that his relationship with his daughters and grandchildren had been strained...
Mr Armitt complained of ongoing irritable bowel syndrome-type complaints, mostly constipation, leading to PR bleeding, anal fissures and severe pain.
Yet again, he complained of sleeplessness, with broken sleep at night, occasional early morning wakening, but not always. He was disturbed by occasional nightmares still.
...
Mr Armitt continues to use alcohol to excess. He has been minimally involved in socialising, but has managed to attend certain leisure activities, such as a country music concert in company of his wife. He stated that he became irritated with the person booking their accommodation over the phone.
Mrs Armitt confirmed that her husband drinks two-three bottles of brandy every week. She said that he occasionally smoked a cigar. He has given up smoking the pipe.
In terms of the onset of symptoms, which was meticulously dealt with by this examiner and a time line of symptom progression, in terms of their temporal course over the years emerged.
From the collateral history provided to me, it appears that Mr Armitt was symptomatic when his wife was pregnant with their second child. Their middle child, a daughter, was born after Mr Armitt returned from Vietnam. During her pregnancy, Mrs Armitt recalled feeling somewhat uneasy around her husband, who seemed to lose his temper quickly and was much more reactive than ever before. He would apparently get ‘stressed out and fly off the handle’ for no apparent or major reason as such. He preferred to have things under his control all the time and could be either demanding or withdrawn.
...
He stated that he felt angry, frustrated and distraught by the process of litigation, whereby he had to go through repeated examinations and talk several times about his experiences in Vietnam. He felt that any disbelief or doubting of his distressing memories, of the reality of the war as he had experienced it from his point of view was even more upsetting since he had no choice or control over that period of his life.
In hindsight, he and his wife felt that Mr Armitt had suffered for many years before coming forward and acknowledging the reality of his symptoms. For many years, he tried to avoid seeking help, especially psychiatric or psychological help, despite his wife’s coaxing him to do so because of the emotional problems he had displayed in interactions with others.
...”

Dr Charkey-Papp next referred to the applicant’s current medication and treatment, and certain existing stressors (including family circumstances) in his life, briefly described his mental status examination, and continued:

“In the remainder of the report, I will canvass my answers and opinion in response to your specific questions:

1. In relation to point 6 of page 2 of your correspondence, under heading ‘Personal and Social History’, I obtained a detailed history of the events surrounding the death of an Aboriginal man in custody on 28th September 1983 in a police lock-up in Roebourne. Mr Armitt acknowledged that he was the subject of an investigation and that he was also tried for manslaughter in the Supreme Court of Western Australia around May 1984. He admitted to the stressful nature of this event, but curiously, he displayed and acknowledged a sense of emotional numbing, detachment and alienation in relation to the matter. Coinciding with your information containing your correspondence, Mr Armitt stated that he was eventually acquitted of the charges. He admitted to participating in restraining the deceased man at the time, but denied causing any physical harm as such.
   
2. In relation to the matter listed under point 7 on page 2 and page 3 of your correspondence, it is clear to me that 2003 has not been a good year for the Veteran. He was working in Carnarvon at the time and he presented to his general practitioner, Dr Howes in March with being ‘restless... listless, lacking in energy... snappy and grumpy...?PTSD, won’t talk about upcoming or past wars...’, which had been apparently confirmed by a report from his wife as well. This information is contained in the medical notes obtained from the Carnarvon Medical Practice, the clinical notes relevant to Thursday March 20th 2003 recorded by Dr Howes. Furthermore, Mr Armitt related the onset of worsening moods during that year, partly as a consequence of his thyroid dysfunction diagnosed in the same year. He proceeded to provide a detailed account of the events surrounding the allegations of ‘sexual harassment’. He had apparently accompanied the Magistrate to one of the remote courts in the Karratha-Onslow region. Since the court was gathered in a relatively small room, upon entering the court house, Mr Armitt had to pass a female attendee. In doing so, he allegedly gently placed a hand over her back (not lower back) to signal his proximity and to make way to his own seat or place in the room. Subsequently, he was surprised and bemused at the allegation of having ‘slapped’ this female person, since they were standing only a few metres away from the Magistrate herself. Mr Armitt stated that if he had done so, i.e. if he did indeed slap the female person more or less sonorously over any part of her body, this would have been witnessed by others, such as the Magistrate, or in turn, the female person’s indignation or reaction would have been visible to all. This had not been the case.

On the other hand however, this particular incident precipitated a process of professional burn out that had already begun with Mr Armitt coping less and less well with his police prosecuting duties. He found himself increasingly irritable, less patient and less tolerant towards others, which obviously started to interfere with his carrying out court duties. He emphasised however that he ‘loved’ the job, in that he loved the process of bringing justice and proving the truth by identifying the guilty parties. He stated that he still read the court column in the newspaper whenever he could, yet realised that he had become less suited for the job.
Therefore, in view of the above, it is my considered opinion that the alleged incident that took place around July 2003 and which led to allegations of ‘sexual harassment’ against Mr Armitt was more likely than not a manifestation of his already present symptomatology at the time, rather than being the cause of such symptoms or later distress.
In this sense, it is my view that by July 2003, Mr Armitt was sufficiently symptomatic, especially irritable, easily frustrated and somewhat more impulsive than usual, in that his behaviour in the court room would have been less than well thought through and even regarded indolent by some. In this sense, I consider the incident and the aftermath of that incident to be the result or effect (as opposed to the cause) of an already present disorder in the Veteran, or in other words, another example of the behaviour of a man who had started to break down already.
...

7. In response to point 17 on page 7 of your correspondence, I am of the opinion that Mr Armitt does indeed suffer and has suffered from Post Traumatic Stress Disorder, which is currently still partially treated only. In order to bring more symptomatic control, he might benefit from more frequent reviews by his treating psychiatrist and a possible switch of the serotonergic antidepressant, Cipramil. Obviously, I would defer to my colleague with regards to therapeutic decisions.

...
In conclusion, I am compelled to uphold the view that the veteran, Mr Armitt, suffers from a relatively mild, but largely untreated, or partially treated at best, condition of PTSD complicated by alcohol abuse and perpetuated in the context of non compensable life stressors (including the process of litigation itself).
...” (original emphasis)

62. In her oral evidence-in-chief Dr Charkey-Papp agreed that, following the sexual harassment complaint in July 2003, and the subsequent institution of the loss of confidence process in the Western Australia Police Service, against the applicant, the threat to the applicant’s employment created thereby acted as a stressor on him and could have constituted a “severe psychosocial stressor” of the kind that can cause depression. She also agreed that the applicant’s reported behaviour at that time was consistent with his experiencing a “psychosocial stressor” and responding to it. She reiterated, however, the opinion expressed in her report of 15 January 2007 that by mid-2003 the applicant was probably already suffering anxiety and stress which may have caused a lack of judgment and resulted in the impulsive behaviour about which the sexual harassment complaint was made.
63. As regards the applicant’s capacity to work, Dr Charkey-Papp said:

“The capacity to work is, as I said before, a very difficult issue in this case because Mr Armitt had a good work record up until 2003, has not worked since then. His treating medical practitioner and psychiatrist had the opinion that he could no longer work in early 2004. Mr Armitt has not worked in the last few years – three or four years, but he still has some ongoing symptoms. He did not have to be in a situation of work, therefore we cannot say with certainty how he would be if he were in the work situation. I know that perhaps if everybody agreed and Mr Armitt wanted to work in a capacity of volunteer work or part-time work and so forth, that perhaps could be implemented, but it is – again, I would then say, you know, I examined Mr Armitt on two occasions only. I have not spoken to his employer as such; however, his treating psychiatrist believes that he should have retired back then, three years ago. And I guess the grounds for that opinion – I do respect that opinion in itself. I do not contest it. If Mr Armitt had the – I guess, the motivation, the resilience and willingness to work again in his capacity for which he is trained for and for which he has experience in, and his doctor – his treating psychiatrist would support him in that, then that would be a worthwhile endeavour. It still does not guarantee that he could do that job and that there would not be any further sexual harassment issues coming up, any incidents whereby he acts in a way that is not appropriate and so forth. We don’t know that.” (Transcript, p 286)

64. In cross-examination, Dr Charkey-Papp gave the following evidence:

“Now, it was put to you that possibly the disciplinary proceedings may have been the significant stressor?---Yes.
Mr Armitt reported to you the incident that occurred on Remembrance Day in 2003?
---Yes.
Yes. And effectively, that was the day of a – of breakdown -- ?---Yes.
-- for him?---That seemed to be – yes – reported as such. Yes.
And what I suppose I am getting to is you described the incident, or you described the disciplinary proceedings, or whatever happened, as possibly the straw that broke the-- ?---The camel’s back.
-- camel’s back. Yes. Now, given the history of Mr Armitt, those disciplinary proceedings can be seen as simply aggravating his pre-existing condition?---Yes.
And are you firmly of – well, yes, I’ll say that – are you firmly of the view that Mr Armitt had a pre-existing PTSD condition?---On the basis of the evidence, yes.
And you do have – I mean, you have spoken to Mrs Armitt, and she has got a history of symptoms ranging way back to just after 1971?---On and off, yes.
On and off. Yes. Yes?---Yes. On and off. Yes, yes.
And really, that’s the way PTSD manifests itself, isn’t it? That each individual stressor, effectively is another straw?---You mean that the – each additional stressor is additive, or destabilising in time. It’s a fascinating condition because there are some people in whom the passage of time is actually quite healing and their PTSD condition seems to get better with time lapsing from the trauma, and they get better and better.
Yes?---Whereas there are others who perhaps – and I think this is – Mr Armitt fits into this category – there are other sufferers who have concealed their symptom, who have not dealt with the issue, who have this, quite difficult to understand, protracted course, and come to attention 20 years later, or 50 years later, which we always question, how come? How come – where was it for so many years? But it is – it well could be that the blocking doesn’t work. You see, I always tell my patients that blocking things out of your consciousness and awareness and not dealing with them will not work, because at some stage, those things will pop up, and that’s my experience with – and my view on why we see these two scenarios which are totally different.
Yes. And the second scenario – Mr Armitt’s scenario – is certainly not uncommon?---No. No.
...
Now, we talked a little bit about his capacity to work, and you said it might be good for him to actually go out and do that work?---A little.
But given the symptoms that you’ve described, it’s not – he is probably better off avoiding any conflict situations?---Conflict, yes, probably, yes.
And it’s fair to say isn’t it, that employment situations usually involve some degree of conflict?---Yes, some. Some employment does.
Especially some sorts of jobs, such as being a court orderly, and you know ushering people in and out of the court?---Yes.
You don’t think that would be suitable for Mr Armitt, do you?---Not really, no.
Or a bailiff, going and serving people with processes, court processes, you know, summonses and things like that?---Probably not, yes.
Security guard where he is, you know possibly confronting people about stealing things or, you know?---Yes.
...
I was just a bit interested when you were speaking about Mr Armitt’s capacity to work and you talked about his personal motivation, his resilience and willingness to work and that would change. But the difficulty here is Dr Kay has actually recommended he doesn’t try and work. Would you concur with that recommendation?---Yes, I would. I would, indeed. And as I said – and I have to emphasise – this is a complex issue. This is a very complex issue, especially in psychiatric disorders, of why people cannot perform their duties. It is not quite as easy to grasp as when you’re dealing with a physical condition and the person cannot lift or cannot walk or cannot climb stairs. In psychiatric conditions, it is somewhat more subtle and difficult to assess that work capacity. And in defence on the person’s whole experience of their work, of how they perceive themselves in their role, whether they can actually imagine themselves being back in that work situation or any other work situation, whether they can actually feel that they could fit in, they could manage their own – their symptoms and anxiety to the point where they can perform those duties. I know that Mr Armitt is capable of certain things in his daily functioning. I asked questions about that, about driving, about what he does during the day. Therefore, there is – I mean, there are certain activities that he’s been able to carry out, and I would say it would depend on the nature of the employment and his willingness to do something. And if, indeed, your theory of his personality – if he coped with distress over the years by launching himself into work, and that was a coping mechanism that was taken away from him towards the end of 2003, then I would say that in the future, too, doing some meaningful work in the community, even if it’s on a part-time basis, would be quite therapeutic.
Yes?---That’s my view on that, on the issue of employment.
...
I can just go to the report, because I’m quite satisfied with each of the matters that are referred to in terms of Mr Armitt’s capacity to work and – you stand by those conclusions that you -- ?---Yes.
-- put into your report? And I probably – I mean, the reports speak for themselves. I really don’t need to go much further than that.” (Transcript, pp 293-294, 295-296, 297-298)

Dr Gregory Deleuil

65. Dr Deleuil confirmed that he has been the applicant’s treating general practitioner since September 2004 and that he sees him every 4-6 weeks.
66. Dr Deleuil said that on 10 September 2004 he completed a DVA Medical Impairment Assessment form in respect of the applicant’s conditions of PTSD and alcohol abuse, gout, irritable bowel syndrome, anal fissure, and scar left 5th finger (T8). In respect of gout, Dr Deleuil’s assessment was that the applicant:
    • as a general rule, has no problems with lower limb function;
    • has no restriction of movement of any limb joint;
    • has pain in the right para-spinal region of the cervical spine but normal, or minor loss of, range of movement of the cervical spine;
    • has no problems with his thoraco-lumbar spine. (T8, pp 68-69)

Dr Deleuil also commented that the applicant has arthritis of the cervical spine (T8,
p 69). In a report to the DVA dated 18 February 2005, however, Dr Deleuil stated that recent x-rays of the applicant’s cervical spine show degeneration of the C6/7 disc space but that that degeneration was “not severe enough to cause him to stop work”. (T18) In his oral evidence Dr Deleuil also confirmed that he was not aware of any condition in relation to the applicant’s back which would prevent him from working.

Dr Christopher Hammersley

67. Dr Hammersley, Consultant Occupational Physician, confirmed that he had prepared 2 reports in relation to the applicant, dated 15 May 2006 and 8 February 2007. Those reports were tendered in evidence by the respondent (Exhibits R10 and R11, respectively).
68. Dr Hammersley’s report of 15 May 2006, which was addressed to the respondent’s solicitors, relates to an examination of the applicant by him on that date. In that report Dr Hammersley set out the applicant’s occupational history and his medical history in relation to gout, alcohol abuse, irritable bowel syndrome, anal fissures, lumbar pain and cervical pain, referred to the applicant’s current physical symptoms and his physical examination of the applicant, and answered questions asked of him by the respondent’s solicitors as follows:

"

Has Mr Armitt been prevented on or after 23 July 2004 to date from continuing his paid work because of his accepted disabilities alone?
In this respect, please consider the following issues (if they are within your expertise):

1. Was Mr Armitt’s PTSD sufficiently severe at the time of cessation of work to prevent him from undertaking 8 hours of work a week? We note the only psychiatric evidence appears to be from Dr Oleh Kay who opined in November 2003 that Mr Armitt only required the occasional day off work due to his symptoms and then on 20 December 2003 said he was totally and completely incapacitated for work due to his PTSD. We also note that this may be outside your area of speciality.

I cannot answer this question with expertise. I have psychiatry training to a general practitioner’s level, but am not able to retrospectively assess this man’s status as it would have been 10 months ago or indeed 6 months ago. I can say that the history provided to me suggested that no physical problem was the cause of him discontinuing his work. He was tolerating his bowel conditions and painful anal condition at that time.

2. What jobs would Mr Armitt be suitable for, even on a part-time basis? If on a part-time basis, how many hours could he work?

In my opinion Mr Armitt would need to seek work without stressful or burdensome contacts with others. This would mean working away from people, ie not in a team nor in a public service role. He would need to work alone either as a craftsman or in some form of monitoring role. For example, there is no physical reason why he could not do part-time picture framing, in a small gallery set up at his house. This would be a small local business requiring that he do a few hours work per week and with manageable overheads. (I have assessed workers with neck and back pain plus other physical disabilities, who have managed 15-20 hours per week in that type of work, with useful income supplementation).
I would not recommend driving work, owing to the difficulty with toileting. Security work in general is likely to be unsuitable, except where there is a simple monitoring role and no person-to-person contact required, for example, where a worker is monitoring computer screens, eg close-circuit television. Provided toilet facilities were convenient, I believe he could work part-time in such a role from a physical point of view.
I believe that in suitable work he could work more than 8 hours per week.

100. Is it your opinion that Mr Armitt’s accepted disabilities alone are of such a nature that they render him incapable of working 8 hours per week? Please bear in mind this is not only his work with the WAPS but also other types of work for which he may be suitable.

It is not my opinion that owing to his accepted disabilities (excluding the PTSD, on which I am not expressing an opinion), would render him incapable of working two hours a day for 4-5 days a week (sic).

4. If Mr Armitt is prevented from continuing to undertake remunerative work, are the accepted disabilities the only factors preventing him from continuing to undertake that work?

Note: You are not required to consider whether there are other causes that might render Mr Armitt unable to take remunerative work. Just whether the accepted disabilities alone are sufficient to render him capable of undertaking such work.
Mr Armitt is not physically prevented from continuing to undertake suitable remunerative work; I make no comment about his psychological status and its prospects for improvement.
I feel that there were no significant factors other than the accepted disabilities operating in his fitness for work.
I note that Mr Armitt has yet to attend a gastroenterologist for specialist bowel care (because he was in rural areas). This is now appropriate, and may be able to improve his comfort and gastro-intestinal function.

5. If your answer to d) is yes, which of the accepted disabilities plays the most significant role in preventing Mr Armitt from working?

With regard to the physical conditions, I believe that it is the Irritable Bowel Syndrome which has the most disruptive effect on Mr Armitt’s occupational function. This requires him to concentrate on his bowel function much more than a normal person, and to attend to toileting, which is disruptive for work performance. It is for that reason that I think part-time work is more suitable, particularly where it has variable hours or days. Working from home in a small craft business would be ideal. I believe that such an occupation would actually contribute towards improving Mr Armitt’s mental health, without carrying a significant stress component. (His comments suggested that he has already begun to perceive the mental deconditioning from being off-work with unstructured time as a necessary symptom of his illness.)

6. Do you think Mr Armitt is prevented from obtaining work (assuming he is genuinely seeking it) because of his non accepted disabilities? For example his back and neck problems?

I am not of the opinion that Mr Armitt is being prevented from obtaining work because of non-accepted disabilities. In my opinion his neck and back discomfort experience is indistinguishable from the normal population of his age.” (original emphasis)

69. In cross-examination Dr Hammersley confirmed that his assessment of the applicant’s capacity to work was based solely on his physical capacity. He said that he believed that the applicant had the physical capacity to work 20 hours per week.

Dr Kim Stanton

70. Dr Stanton said that he is a consultant physician and that he is the Chairman of the State Government Superannuation Medical Boards. Dr Stanton was the Chairman of the Medical Board convened in March 2004 at the request of the Commissioner of Police for the purpose of determining the applicant’s “fitness for further active service in the Western Australia Police Service”. (Exhibit R1, p 3)
71. Dr Stanton confirmed that the finding of the Medical Board (comprising himself, a doctor representing the Department of Health, and a psychiatrist) was stated in a letter, dated 20 April 2004, from the Board to the Office of the Chief Medical Adviser, Department of Health, as follows:

“Ian Armitt has worked in the Police Force for nearly thirty one years. In recent time he has worked as a prosecuting sergeant in country centres. He has had increasing problems coping with work in the last ten years. Ian has noted increasing irritability and difficulty coping with stressful situations. This led to a diagnosis of post traumatic stress which has not improved dramatically with treatment.
To add to his problems he has a long history of irritable bowel syndrome and had a sphincterotomy for an anal fissure which has given him a degree of rectal incontinence. This has added to his difficulties at work and probably precipitated his cessation of work in November 2003.
We accept if Mr Armitt returned to work he would have some difficult (sic) coping and therefore we accept he is unfit to work as a police officer.” (T24)

72. In cross-examination Dr Stanton said that the Medical Board had been provided with the relevant reports of Dr Howes and Dr Kay and had considered whether the applicant was unfit on psychiatric grounds.
73. Dr Stanton confirmed that he had not been informed that the applicant was then the subject of a Loss of Confidence procedure in the Western Australia Police Service and that he had no knowledge of that matter.
74. Dr Stanton was asked whether, had the Board been provided with information about the applicant’s good work performance, it might have come to a different conclusion. He said that he did not think so, and added that the Board considers the medical evidence.
75. Dr Stanton said that the Board’s function was to determine whether the applicant was fit for work, and he confirmed that the Board had found that the applicant was unfit for police work because of his psychiatric problems. He said that the Board was not concerned with the cause(s) of those problems; nor was it concerned with whether the applicant was fit for work other than police work.
76. Dr Stanton acknowledged, however, that he had, independently of the Medical Board, informed the Government Employees Superannuation Board that, in his opinion, the applicant had a capacity for suitable alternative employment on a part-time (50% of full-time equivalent) basis.

THE LAY WITNESSES

Sherryle Armitt

77. Sherryle Armitt, the applicant’s wife, signed a written statement, dated 20 February 2007, which was tendered in evidence (Exhibit A7), and gave oral evidence. It is unnecessary, however, to refer to her evidence in detail in these reasons.

Kenneth Nicolson

78. Kenneth Nicolson said that he is employed in the Police Prosecuting Division of the Western Australia Police Service in Perth and holds the rank of Inspector. He confirmed that he had signed a written statement, dated 9 February 2007, for the purpose of these proceedings, and that its contents are true and correct. The contents of that statement, which was tendered in evidence by the respondent (Exhibit R3), are as follows:

“...

2. I have been a police officer with the Western Australia Police since July 1972. ...
3. Over the years, I have worked at many different police stations in the country area. I first met Ian Armitt in the latter half of 2001 when I was stationed in Geraldton and held the position of Assistant District Officer at the Mid-west Gascoyne District Office.
4. As the Assistant District Officer, I was responsible for the management of a number of police stations including the Carnarvon police station for a period of 12 months in 2002-2003 and for a further period of 12 months in 2004-2005. It was my practice then to visit the Carnarvon station at least once or twice each month usually for 2 or 3 days on each occasion. In addition, the Officer in Charge at the Carnarvon station, Senior Sergeant Tony Mettam, would also report to me directly on at least a weekly basis as well as on other occasions when police, management or staffing issues arose. From time to time, I also spoke to other police officers at the Carnarvon station, including Ian Armitt, in relation to welfare or work issues.
5. Ian was a Sergeant Prosecutor at the Carnarvon station. The main part of his work (about 90%) was prosecution work although he would occasionally undertake station shift work dealing with general duties, going out on patrol with other officers or having contact with the community. The working hours in Carnarvon at the time were such that all officers worked a 44 hour week and a 11 day fortnight. The extra 8 hours per fortnight that Ian was required to work was shift work.
6. While I did not have close contact with Ian in relation to his day to day work, I did speak to him on many occasions over the periods I have mentioned. My observation of Ian is that he favoured the old traditional style of policing and was somewhat resistant to the more recent contemporary policing style and standards. I would describe him as a good prosecutor and I was not aware of any complaints about his work. He could be a bit brash at times, swore occasionally, and did have some tendency to rub some people, including his work colleagues, up the wrong way. Because of his brashness, he could be seen to be rude at times but generally other staff got on well with him.
7. Prior to the misconduct complaint made against Ian in July 2003, I recall being told by Tony Mettam from time to time, Ian had taken sick leave for short periods of a day or 2 because of his stress during periods when the workload was heavy. As far as I knew, when this occurred, he would come back from leave and be alright. I do not recall being concerned by this as Ian did not take extended sick leave to my knowledge. It is also not unusual for officers to get stressed when the workload is heavy, particularly, as in Ian’s case he was the only prosecutor at the Carnarvon station. Apart from suffering from workload stress from time to time, I was not told, and did not suspect, that Ian was suffering from any other medical problems or conditions. As far as I am aware, Ian did not have any problem with alcohol. If he did drink alcohol during his service at Carnarvon, it did not interfere with his work.
8. On 17 July 2003, a complaint was made by a court officer in Karratha against Ian for conduct that was unbecoming. She alleged that, since meeting Ian in May 2003, he had been making inappropriate comments to her and had slapped her on the backside. The complaint was regarded as of a serious nature, and an internal investigation was launched by officers assigned from the Internal Investigation Section of the Mid West-Gascoyne District Office.
9. In the initial stages of the investigation, as part of a risk management strategy, a decision was made by the District Superintendent to relieve Ian of his prosecution duties mainly to avoid the possibility of the complainant coming into contact with Ian again. Some weeks later, this decision was reversed and Ian returned to prosecution duties in Carnarvon.
10. As the investigation progressed, and as more information came into light regarding his behaviour and conduct as a result of interviews held with the complainant and witnesses, the Commissioner, on a recommendation from the Superintendent in charge of the Mid-west Gascoyne District, stood Ian down from all of his duties. This occurred in Carnarvon on 25th November 2003 when a Stand Down Notice was served on Ian by Tony Mettam. ...
11. During Ian’s suspension, the investigation resulted in a recommendation to the Commissioner to issue a notice of loss of confidence to Ian. The Commissioner agreed with this recommendation and a Notice of Intention to Remove, was issued under the provisions of Section 8 of the Police Act 1892, on 13th March 2004. I served this notice on Ian Armitt in person in Carnarvon on 18th March 2004. In any loss of confidence procedure, the officer served with the notice must be given time to respond as to why he or she should not be dismissed. ...
12. In my experience, an officer facing removal for misconduct, often resigns rather than be dismissed. This is because if an officer is removed for misconduct, the officer would not receive superannuation benefits other than his or her own contributions. If the officer resigns, the loss of confidence procedure and any investigation normally comes to an end unless it relates to a criminal offence.
13. I was aware that Ian had obtained a medical discharge from the WA Police in about 20 July 2004. However, I do not know the details. I do recall being told by Tony Mettam that Ian was under quite a bit of stress about the complaint and the internal investigation into it.”
    

Inspector Nicolson also gave oral evidence but it is unnecessary to refer to it in these reasons.

Anthony Mettam

79. Anthony Mettam said that he is a Senior Sergeant in the Western Australia Police Service and is the Officer in Charge of the Kalgoorlie Police Station. He confirmed that he had signed a written statement, dated 9 February 2007, for the purpose of these proceedings, and that its contents are true and correct. The contents of that statement, which was tendered in evidence by the respondent (Exhibit R6), are as follows:

"

... I have been a police officer with the Western Australia Police since 1974.
Prior to my transfer to the Kalgoorlie Police Station on 29 January 2007, I was the Officer in Charge of the Carnarvon Police Station since about May 2002. Prior to that, I have worked at many different police stations in the country area.
When I arrived at Carnarvon Police Station, Ian Armitt was already stationed there. Although I had met Ian on a few occasions prior to my arrival and knew of him, I had never worked with him.
In my position, as the Officer in Charge, I was essentially the manager of the Carnarvon Police Station, and responsible for the day to day running and management of the station, including dealing with issues relating to staffing, policing and welfare. At the time, the Carnarvon Police Station had about 29 police officers, including Ian, under my charge.
In my role as the Officer in Charge, I was required to report to the Assistant District Officer of the Mid-west Gascoyne area, Inspector Ken Nicolson. I did this usually on a weekly basis by telephone to him. Inspector Nicolson also visited the Carnarvon station consistently at least once or twice each month and usually stayed for about 2 days on each occasion.
Ian Armitt worked as a police prosecutor at the Carnarvon Police Station. The main part of Ian’s work was prosecution work although he also took on some shift work. Having worked with Ian on a day to day basis at the Carnarvon Police Station since May 2002, I got to know him quite well. My observations of Ian were that he was jovial, easy to get along with although he did blow up and carry on like we all do at times. He was well liked, particularly by the younger officers because he was always willing to do weekend work and cover shifts for others. He was also willing to do work other than of a prosecution nature such as answering telephone enquiries and helping out at the counter. There was no conflict between Ian and other officers, or Ian and members of the public. I do not know anything about Ian’s drinking habits but I do know that if he did drink, it did not affect his work. I would have him working for me anytime.
In July 2003, a complaint relating to sexual harassment was made by a juvenile justice officer against Ian. ...
Shortly after the complaint was made, a decision was made by Superintendent Gronow, who was the senior officer in the Mid West-Gascoyne District, to no longer assign prosecution duties to Ian. The Superintendent’s decision meant that Ian continued to work as a Sergeant at the Carnarvon police station but not as a prosecutor. I did not serve Superintendent Gronow’s direction on Ian as I was away and Sergeant Gibson was relieving in my position at the time. I do know from my subsequent conversations with Ian that he was upset by the decision and wished to continue to work as a prosecutor.
Ian was capable of doing the duties of a Sergeant, including patrols, but the decision to no longer assign prosecution duties to Ian caused operational problems as we had no one to prosecute on a regular basis. I spoke to the Magistrate at Carnarvon, Susan Richardson, who told me that she was happy for Ian to continue to prosecute in her court. Ian was a good prosecutor and was liked by the Magistrate, court staff and legal representatives alike. I spoke to Inspector Nicolson and, after some weeks, Ian was allowed to resume prosecution duties but only at the Carnarvon Magistrates Court. This would have been some time in August 2003.
Around the same time, I recall receiving an e-mail from Ian complaining of breaches of confidentiality in the investigation. I forwarded the e-mail to Acting Inspector Yates. I recall that Inspector Nicolson interviewed Ian in relation to his complaint.
As part of the investigation of the complaint about Ian’s conduct, he was interviewed, by Inspector Ballantyne and Sgt Meyerink from Mid West Gascoyne District Police Office, on 8 September 2003. I was present at this interview in the capacity of the interviewee’s friend. Ian had initially treated the whole affair as a bit of a joke but after the interview, it became clear to him that the complaint was being taken very seriously with serious consequences for him. It was at that point that I noticed that Ian became stressed.
My recollection is that it was sometime after this interview that Ian went to see a doctor (I think it was Dr Howes) and he did take some sick leave for stress. I do not recall the dates.

13. My official diary shows that I served a Stand Down Notice on Ian, in my office, on 25 November 2003 and took possession of his key and police identification. ...
14. My official diary also shows that I and Sergeant Gibson did a welfare check on Ian the following day, and that I found Ian in reasonable spirits but a bit angry and frustrated.
15. My diary also confirms that I and Sergeant Gibson did another welfare check on Ian on 2 February 2004, and that I rang the District Office to complain of the lack of assistance being provided to Ian by the Health and Welfare Branch. The reason for my complaint was that Ian was very stressed.
16. On 17 March 2004, I was asked by Superintendent Gronow to ascertain if Ian was in town as he wished to see him. I telephoned Ian who agreed to see the Superintendent. Ian later rang me declining to see Superintendent Gronow because he had heard from somebody in Perth that the Superintendent had a section 8 notice, which is a notice under the Police Act 1892 that the Commissioner has lost confidence in the member, to serve on him. Ian was very upset, aggressive and abusive of the Superintendent. Ian refused my offer that I serve it on him and said that he was leaving town in the morning. ... Inspector Nicolson then contacted the Police Union through which arrangements were made for Ian to attend at the Carnarvon police station to be served with the Loss of Confidence Notice the following morning.
17. On 18 March 2004, Ian attended the station and, at his insistence, was served with the Loss of Confidence Notice by Inspector Nicolson in view of other officers.
18. ...
19. I knew Ian was very stressed after he was served with the Loss of Confidence Notice because I used to visit him at his home while the investigation was continuing and while he was waiting for the outcome of his application for a medical discharge. He expressed a lot of concern about his situation.
20. In my experience of working in the Western Australian Police for over 30 years, a police officer served with a Loss of Confidence Notice tries to obtain a medical discharge, and if that is not possible, he or she resigns. The reason for doing so is that if the officer were to be removed for misconduct, the officer’s superannuation would be adversely affected. As far as I know, all police officers are made aware of the impact of dismissal on their superannuation when they join the police force.
21. Unless an investigation of a complaint against an officer revealed possible criminal offences, the resignation of the officer or the officer’s removal on medical grounds ends the matter.
22. My recollection is that once Ian sought a discharge on medical grounds, the Loss of Confidence process for misconduct was put on hold. I was not surprised that Ian sought a medical discharge because it was my belief from the course of the investigation that if Ian didn’t get the medical discharge, the Commissioner would remove him for misconduct. It was my understanding, from Ian’s desire to avoid service of the Loss of Confidence Notice and his conversations with me, that he also believed that if he didn’t get the medical discharge the Commissioner would remove him for misconduct.
23. I heard that Ian eventually obtained a medial discharge but I do not know the details as I was not involved in the process.
24. From the time I was stationed in Carnarvon until the events arising out of the sexual harassment complaint, I did not hear of Ian having any serious medical conditions. I do recall Ian saying that he had some gout problems, a back injury and some sort of bowel problem and was taking medication for them. I also recall Ian sometimes saying that he had to go and see some doctor about one or other of those conditions. To my knowledge, none of those conditions interfered with Ian’s work, even when he was prosecuting matters in the court.
25. Ian did not appear to be any more stressed than the other police officers, even though the nature of his work as a prosecutor was fairly stressful. I regard prosecuting work as stressful because I had worked as a police prosecutor for about 3 years and there was a huge amount of paperwork to deal with. There is nothing unusual about a prosecutor returning inadequately prepared paperwork to those responsible for its preparation. There is no point in prosecuting charges which have been inadequately prepared by the officers who brought the charges.
26. I observed that Ian worked very hard in his job. He sometimes got ‘huffy and puffy’ with his workload. When that occurred, I would to do the right thing by giving him a bit of time off without taking it out of his leave entitlements.
27. I do not recall Ian taking any more sick leave than other officers. I do not recall him ever taking a week or more of continuous sick leave during the time I was stationed at Carnarvon. I am confident that this did not happen.
28. Having supervised Ian, I am firmly of the opinion that Ian’s stress was caused by the misconduct investigation and the Loss of Confidence Notice served on him. Although Ian did mention to me that he had served in Vietnam, he never indicated to me in any way that he was affected by his time there.
29. ...

...”

80. In cross-examination Senior Sergeant Mettam agreed that he and the applicant were not “close socially” and that the applicant did not confide in him. He said that he knew that the applicant had been in the Army and had been to Vietnam, “but that’s about all”. He confirmed that the applicant had not told him about his PTSD condition.

Ian Gibson

81. Ian Gibson said that he is a Sergeant in the Western Australia Police Service and is the Officer in Charge of the Southern Cross Police Station. He confirmed that, on 24 July 2003 when he was the Acting Officer in Charge of the Carnarvon Police Station, he served papers on the applicant removing him from his position as prosecutor at Carnarvon Police Station. He said that he contemporaneously made handwritten notes of his conversation with the applicant on that occasion, and that on 25 July 2003 he prepared a memorandum formally notifying the District Office what had occurred on that occasion. The contents of that memorandum are as follows:

“Please be advised that at about 1100 hours on Thursday the 24th of July I personally served First Class Sergeant ARMITT with a letter withdrawing his prosecutorial function in the Pilbara and Mid West-Gascoyne Police Districts. Sergeant ARMITT signed and dated an acknowledgment of service.
During the course of discussions giving rise to this action, Sergeant ARMITT advised me that he had been expecting something to come from an incident in Onslow. He went on to say that he had apologised to the subject, his apology had been accepted and he was told that nothing further would be done about it. Sergeant ARMITT went on to say that he had been reliably informed last Thursday that a complaint had been made about the incident and that he hadn’t slept since, waiting to see what action would be taken.
Sergeant ARMITT was clearly upset at having his duties restricted and felt that his career was now over, he had been ‘hung drawn and quartered’, and stated that he would never work as a Prosecutor again, regardless of the outcome of an enquiry. I explained to Sergeant ARMITT that my interpretation of this course of action was in response to a request received from another Government department and it was a case of simply removing him from that environment, in the interests of continuity and integrity, until a resolution had been reached. I further explained to him that no presumption of any wrongdoing had been formed and that he would, in due course, be given the opportunity to respond.
I was then asked if I was aware of the allegation and in responding that I did not, Sergeant ARMITT demonstrated what had occurred in the Onslow Court room, a very small and cramped space in which he was required to carry out the orderly role in addition to prosecuting. In essence, Sergeant ARMITT showed me that as he was returning to his position at the bar table, an officer from the Department of Justice was blocking his path and in moving her placed his hand on her bottom.
Issues relating to Sergeant ARMITT’s continuing role within the Carnarvon Police Station were discussed and no objection was raised to him undertaking a Shift Supervisor position in the interim period. The interview ceased at about 1130 hours, and Superintendent GRONOW was advised of the outcome.
At about 1145 hours Sergeant ARMITT booked off duty, advising me that if he cannot work with females in the court, he cannot work with females in the Police Station. Given Sergeant ARMITT’s obvious distress, I advised Health and Welfare of the situation at about 1250 hours.
Later that day, at about 1415 hours, I visited Sergeant ARMITT at his home, handed him a brochure entitled ‘Information brief – The Equal Opportunity Act’, and offered my support and that of the station. We spoke extensively of the situation during which Sergeant ARMITT again admitted to having done a ‘...... stupid thing’ and detailed the intense remorse that he felt. Interestingly, Sergeant ARMITT advised me that during the court proceedings he had raised concerns at inconsistencies in the subject’s submissions, which appeared to anger her. On leaving Sergeant ARMITT’s home, at about 1600 hours, I again contacted Health and Welfare and recommended they make contact with him.
Sergeant ARMITT did not present for duty this date.” (Exhibit R1, pp 1122-1123)

82. In cross-examination Sergeant Gibson agreed that the statement in the third paragraph of his memorandum that the applicant “felt that his career was now over” was a reference to the applicant’s career as a prosecutor.

ADDITIONAL MATERIAL

83. Each party also tendered in evidence various other documents but it is unnecessary to refer to all of that material in these reasons. The Tribunal will, however, refer to some of that material later in these reasons for the purpose of its analysis and findings.

THE RELEVANT LEGISLATION

84. The eligibility criteria for payment of a disability pension under Pt II of the VE Act at the “special rate”, and at the “intermediate rate”, are prescribed in, respectively, s 24 and s 23 of that Act. Section 24 of the VE Act relevantly provides:

“24 Special rate of pension

(1) This section applies to a veteran if:

(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
...”

Section 23 of the VE Act relevantly provides:

“23 Intermediate rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity:
(i) if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that the veteran was undertaking.
...”

Section 28 of the VE Act relevantly provides:

“28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work... the Commission shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).”

The expression “remunerative work” is defined in s 5Q(1) of the VE Act to include “any remunerative activity”.

85. Pursuant to s 19 of the VE Act, the special rate of pension, or the intermediate rate of pension, will be payable where the eligibility criteria prescribed by, respectively, s 24, or s 23, of the VE Act are satisfied at some point in time during the “assessment period”. The expression “assessment period” is defined in s 19(9) of the VE Act to mean:

“the period starting on the application day and ending when the claim or application is determined”.

The expression “application day” is defined in s 19(9) to mean (relevantly):

“the day on which the claim or application was received at an office of the [DVA] in Australia”.

The word “claim” is defined in s 19(9) to mean “a claim made in accordance with section 14” (namely, a claim for a pension), and the word “application” is there defined to mean “an application made in accordance with section 15” (namely, an application for an increase in the rate of a pension).

ANALYSIS AND FINDINGS

Is the applicant eligible for the special rate of pension?

86. The “assessment period”, for the purposes of s 19 of the VE Act, in the present case started on 23 July 2004 (being the date on which the applicant’s application for an increase in the rate of his disability pension was received by the DVA). It is common ground that the eligibility criteria for the special rate of pension specified in paras (aa) and (aab), subpara (a)(i), and para (d) of s 24(1) of the VE Act are satisfied in this case. The matters for the Tribunal’s determination are, therefore, whether the eligibility criteria specified in paras (b) and (c) of s 24(1) are also satisfied in this case.

Section 24(1)(b) – Is the applicant’s incapacity from his war-caused diseases of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week?

87. Pursuant to s 28 of the VE Act the Tribunal, in determining this issue, must have regard only to the matters specified in paras (a), (b) and (c) of that section.

Section 28(a) – The vocational, trade and professional skills, qualifications and experience of the applicant

88. In Chambers v Repatriation Commission [1995] FCA 1144; (1995) 55 FCR 9, Moore and Sackville JJ said (at 22-23):

“... Section 28(a) identifies three separate categories of attributes which must be considered in determining the kinds of remunerative work to be regarded as open to a veteran. Each has a broad meaning as a matter of ordinary language. ‘Skills’ means (Oxford Shorter Dictionary) ‘practical knowledge in combination with ability’, or (Macquarie Dictionary) ‘the ability that comes from knowledge, practice, aptitude to do something well’. A person's skills are not confined to those acquired in formal training or by virtue of experience in particular employment. They include innate aptitude for tasks and abilities acquired or developed independently of employment or training. For example, a person may never have used computers at work and have no formal computer training. If that person has self-taught word processing skills, he or she nonetheless has skills that may well enhance opportunities for remunerative work. Similarly ‘qualifications’ means (Oxford Shorter Dictionary and Macquarie Dictionary) ‘a quality or accomplishment which qualifies or fits a person for some office or function’. The word is not confined to qualifications obtained as the result of formal training or work experience. Again, a person's experience is not necessarily restricted to that acquired in employment or formal training.
Of course the only skills, qualifications and experience that may be taken into account for the purpose of determining the veteran's opportunities for remunerative work are those that can be described as ‘vocational, trade and professional’ in character. We do not think that the adjectives used in s 28(a) are intended to limit the skills, qualifications and experience that may be taken into account to those that have been acquired from a particular source or in a particular manner. Rather, they are intended to direct attention to skills, qualifications and experience equipping the veteran for remunerative work in a vocation, trade or profession. This, of course, is not to deny that experience or training in a particular occupation or employment will be very important in determining, for example, the vocational skills or the trade qualifications of a particular veteran. The point is that the language used in s 28(a) is not, in our view, apt to limit the relevant skills, qualifications and experience to those retained in a particular way, as opposed to those of significance for the labour market. After all, as we have noted, the inquiry with which s 28 is concerned is whether an incapacitated veteran is incapable of undertaking any remunerative activity. ...”

89. On the basis of the evidence before it, the Tribunal is reasonably satisfied, and finds, that the applicant’s vocational and trade skills, qualifications and experience include the following:
    • carpentry skills, qualifications and experience;
    • Army experience, including skills and experience in housing construction and renovation;
    • scaffolding skills and experience;
    • literacy and numeracy skills;
    • clerical skills;
    • computer skills;
    • police experience, including criminal investigation, law enforcement and prosecution skills, qualifications and experience.

In relation to carpentry skills, the Tribunal notes that in a formal Application for a Transfer from Dongara Police Station, dated 30 July 1997, the applicant stated (inter alia):

“... Whilst in Albany I was a founding committee person for the PCYC. I worked many hours to upgrade the present premises including the laying of the wooden floor. As a qualified carpenter before joining the Police Service I was able to use these skills to reduce costs to the PCYC.” (Exhibit R1, p 286)

Section 28(b) – The kinds of remunerative work which a person with the abovementioned skills, qualifications and experience might reasonably undertake

90. In Chambers (above), Moore and Sackville JJ said (at 20):

“Section 28(b) focuses attention upon the range of employment opportunities that a hypothetical person with the skills, qualifications and experience referred to in
s 28(a), might reasonably undertake. ...”

Their Honours referred to Defence Force Retirement and Death Benefits Authority v House [1989] FCA 516; (1989) 22 FCR 138 in which the Full Court of the Federal Court of Australia, in relation to para (b) of s 34(1A) of the Defence Force Retirement and Death Benefits Act 1973 (Cth) (whose terms are substantially similar to those of s 28(b) of the VE Act), said (at 141-142):

“... [Paragraph (b)] requires consideration, not of employments the member has followed or would be likely to follow, but of the kinds of civil employment which a person with the skills, qualifications and experience identified in par (a) might reasonably undertake. The words ‘kinds’, ‘might’ and ‘reasonably’ all indicate that a narrow view is not to be taken. ...
It should also be observed that the primary question posed by par (b) is not what an employer might do, nor even what the particular member might do, but what a hypothetical person with the relevant skills, qualifications and experience ‘might reasonably undertake’. ...
One thing which is abundantly clear is that par (b) does not restrict a member to the employments in which he is now engaged in his impaired state. That would be to mock the statutory purpose, which is to find an objective criterion for the assessment of the extent of the impairment. The criterion is a broad one which relates to categories of employment and not to particular occupations. It is concerned with the range of occupations open to the person described, so that the effect of the disability may be measured against the opportunities that might have been open. ...”

91. The Tribunal is reasonably satisfied, and finds, that the kinds of remunerative work, which a person with the abovementioned skills, qualifications and experience of the applicant might reasonably undertake, include the following:
    • manual work involving the utilisation of carpentry and/or scaffolding skills, such as building construction and renovation work, “handyman” work, and other work involving the use of wood and wood products;
    • clerical and administrative work;
    • police force work;
    • private investigation and private security work;
    • administration of justice support or ancillary work such as that of a court attendant, process server or bailiff.

Section 28(c) – The degree to which the mental and physical impairment of the applicant as a result of his war-caused diseases has reduced his capacity to undertake the abovementioned kinds of remunerative work

92. In Chambers (above), Davies J said (at 10):

“The terms of s 28 of the Veterans' Entitlements Act 1986 (Cth) were adapted from s 34 of the Defence Force Retirement and Death Benefits Act 1973 (Cth); but there is a difference. The latter section requires a determination to be made of ‘the percentage of incapacity in relation to civil employment of a pensioner’. There is a ready correlation between that task and the reference in par (c) of s 34 to the degree to which any physical or mental impairment of the pensioner diminishes the capacity of the pensioner to undertake the kinds of civil employment referred to in par (b).
Paragraph (c) of s 28 of the Veterans' Entitlements Act also requires that there be consideration of the degree to which the physical or mental impairment of the veteran as the result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in par (b). But the words ‘the degree’ do not require a determination of a percentage. Section 24 is concerned with the issue of whether the veteran is incapable of undertaking remunerative work for periods aggregating more than eight hours per week. That is the degree spoken of. The combined operation of ss 24 and 28 and the reference in s 28 to ‘the following matters only’ show that the sections intend that the degree of impairment must be such as, of itself, to have reduced the veteran's capacity to undertake remunerative work for periods aggregating more than eight hours per week.”

93. On the basis of the evidence of Dr Kay and Dr Charkey-Papp, the Tribunal is reasonably satisfied, and finds, that the applicant, by reason of his mental impairment as a result of his war-caused PTSD, is totally incapable of undertaking the following kinds of remunerative work:
    • police force work;
    • private investigation and private security work;
    • administration of justice support or ancillary work such as that of a court attendant, process server or bailiff.

The Tribunal is also reasonably satisfied, and finds, on the basis of the abovementioned evidence together with the evidence of Dr Hammersley, that, for the same reason, the applicant is totally incapable of undertaking clerical or administrative work as part of a team or in a public service context.

94. The matter of the degree to which the applicant’s mental and physical impairment as a result of his war-caused diseases has reduced his capacity to undertake the kinds of manual work involving the use of wood and wood products, referred to in paragraph 91 above, is more problematic.
95. Dr Kay, in his report of 22 November 2004 to the Government Employees Superannuation Board (see paragraph 50 above), specifically addressed the matter of the applicant’s capacity for suitable alternative employment, including the occupations of product assembler and wood products factory hand (which had been identified by Ms Connelly of Advanced Personnel Management, in a report to the Government Superannuation Board, dated 7 July 2004, as occupations which may be suitable for the applicant on the basis of his “transferable skills” – see Exhibit R1, pp 40-45). Dr Kay opined that the applicant’s “capacity to successfully engage in alternative employment [was] greatly affected by his psychiatric and medical problems”, such as his “difficulty working with others, difficulty concentrating for any period of time and... tendency to over-react when frustrated” together with his “irregular” bowel habit and the fact that he is “limited in movement and weight carrying capacity”. Dr Kay added that, given the applicant’s “history of these kinds of problems”, he “would have thought that suitable workers’ compensation insurance for [the applicant] would be difficult to find”. He concluded that, for those reasons, the applicant was “incapable of working in an alternative occupation”.
96. Dr Charkey-Papp, in her report of 19 July 2006, expressed the general opinion that the applicant’s “accepted disabilities alone... render him incapable of working eight hours per week”. Dr Charkey-Papp did not, however, specifically address any other kind of work – that is, other than police work – which might be suitable for the applicant, and express a specific opinion regarding the degree of his capacity/incapacity to undertake such work.
97. Dr Hammersley, in his report of 15 May 2006, did specifically address those matters and he expressed his opinion as follows:

“In my opinion Mr Armitt would need to seek work without stressful or burdensome contacts with others. This would mean working away from people, ie not in a team nor in a public service role. He would need to work alone either as a craftsman or in some form of monitoring role. For example, there is no physical reason why he could not do part-time picture framing, in a small gallery set up at his house. This would be a small local business requiring that he do a few hours work per week and with manageable overheads. ...
I would not recommend driving work, owing to the difficulty with toileting. Security work in general is likely to be unsuitable, except where there is a simple monitoring role and no person-to-person contact required, for example, where a worker is monitoring computer screens, eg close-circuit television. Provided toilet facilities were convenient, I believe he could work part-time in such a role from a physical point of view.
I believe that in suitable work he could work more than 8 hours per week.
...
It is not my opinion that owing to his accepted disabilities (excluding the PTSD, on which I am not expressing an opinion), would render him incapable of working two hours a day for 4-5 days a week (sic).”

98. The Tribunal accepts Dr Hammersley’s opinion and, on that basis, is reasonably satisfied that the applicant’s physical impairment as a result of his war-caused diseases – in particular, irritable bowel syndrome and anal fissure – has not reduced his capacity to undertake the abovementioned kinds of manual work involving the use of wood and wood products to 8, or fewer, hours per week. As regards the applicant’s mental impairment as a result of, primarily, his war-caused PTSD, the Tribunal is reasonably satisfied that, provided that the applicant is able to work in circumstances where he is not exposed to “stressful or burdensome contacts with others” (as mentioned by Dr Hammersley), he would be capable of undertaking those kinds of manual woodwork for periods aggregating more than 8 hours per week, notwithstanding that mental impairment. The Tribunal endorses Dr Hammersley’s example of the applicant’s working alone as a craftsman at his house. In this connection, the Tribunal notes the evidence of Sherryle Armitt that the applicant has a “large shed” at their house which she is “not allowed inside” (Exhibit A7), which could presumably be used by the applicant for that purpose. The Tribunal is reasonably satisfied that the applicant’s PTSD symptoms – in particular, his “interpersonal difficulties manifesting with verbal aggression, rage, explosive outbursts, and friction with people around him” (as mentioned by Dr Charkey-Papp in her report of 19 July 2006), or his difficulty working with others and his irritability and unpredictability in circumstances involving conflict (as mentioned by Dr Kay) – would not render him incapable of undertaking the abovementioned kinds of manual woodwork in the circumstances referred to by Dr Hammersley for periods aggregating more than 8 hours per week.
99. The Tribunal notes, however, that, according to the evidence of Dr Kay and Dr Charkey-Papp, the applicant’s PTSD symptoms also include difficulty concentrating, and, having regard to that symptom together with the symptoms suffered by the applicant as a result of his war-caused irritable bowel syndrome and anal fissure conditions, the Tribunal is not reasonably satisfied that the applicant has the capacity to undertake the abovementioned kinds of manual woodwork for 20 or more hours per week, even in the circumstances referred to by Dr Hammersley. The Tribunal notes that Dr Hammersley, in his oral evidence, opined that the applicant had the capacity to work 20 hours per week, but he confirmed that that opinion related solely to the applicant’s physical capacity and did not take account of the applicant’s mental impairment resulting from his PTSD.
    

Finding

100. Having regard to the matters specified in paras (a), (b), and (c) of s 28 of the VE Act, the Tribunal is reasonably satisfied on the basis of the whole of the evidence before it, and finds, that the applicant is not “totally and permanently incapacitated” (within the meaning of s 24(1)(b) of the VE Act) – that is, the applicant’s incapacity from his war-caused diseases is not of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week – and that, accordingly, the eligibility criterion for the special rate of pension specified in para (b) of s 24(1) of the VE Act is not satisfied in the applicant’s case. The applicant, therefore, is not eligible for the special rate of pension pursuant to s 24 of the VE Act.

Is the applicant eligible for the intermediate rate of pension?

101. It is common ground that the eligibility criteria for the intermediate rate of pension specified in paras (aa) and (aab) and subpara (a)(i) of s 23(1) of the VE Act are satisfied in this case. Because the Tribunal has found that s 24 does not apply to the applicant, and it is common ground that s 25 does not apply to him, the Tribunal finds that para (d) of s 23(1) is satisfied in this case. The matters for the Tribunal’s determination are, therefore, whether the eligibility criteria specified in paras (b) and (c) of s 23(1) are also satisfied in this case.

Section 23(1)(b) – Is the applicant’s incapacity from his war-caused diseases, of itself alone, of such a nature as to render him incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently?

102. As previously discussed (see paragraphs 98-99 above), the Tribunal, having regard to the matters specified in paras (a), (b) and (c) of s 28 of the VE Act, is reasonably satisfied that the applicant’s incapacity from his war-caused diseases does not render him incapable of undertaking the relevant kinds of remunerative work for periods aggregating more than 8 hours per week, but that that incapacity is, of itself alone, of such a nature as to render him incapable of undertaking those kinds of remunerative work for 20 or more hours per week.

Finding

103. The Tribunal finds, therefore, that the applicant’s incapacity from his war-caused diseases is, of itself alone, of such a nature as to render him “incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently”, within the meaning of s 23(1)(b) (read with s 23(2)(b)) of the VE Act. Accordingly, the Tribunal finds that the eligibility criterion for the intermediate rate of pension specified in para (b) of s 23(1) of the VE Act is satisfied in the applicant’s case.

Section 23(1)(c) – Is the applicant, by reason of incapacity from his war-caused diseases alone, prevented from continuing to undertake remunerative work that he was undertaking and, by reason thereof, suffering a loss of salary or wages that he would not be suffering if he were free from that incapacity?

104. In Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47 the Full Court of the Federal Court of Australia described the Tribunal’s task, for the purpose of applying
     s 24(1)(c) of the VE Act (whose terms are similar to those of s 23(1)(c) of the VE Act), as follows (at 54-55):

“[36] The tribunal's task was to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. ... The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.
[37] The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact [of] the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to a veteran's incapacity, the tribunal is then required to determine whether it is the veteran's war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work. Error on the part of the tribunal is (sic) determining whether the veteran's war-caused injury or war-caused disease is the sole determinant in the prevention of continued remunerative work is, similarly, not open to review.” (original emphasis)

105. In Repatriation Commission v Butcher [2007] FCAFC 36 the Federal Court of Australia (Full Court) said (at [7]):

“It is settled law that [s 24(1)(c) of the VE Act] requires consideration of ‘remunerative work’ by having regard not to particular tasks and duties involved in specific jobs, but rather to the type of substantive work undertaken by the veteran considered at a higher level of generality: see Banovich v Repatriation Commission (1986) 69 ALR 395 at 402; Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225; and Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47 at 54.”

106. In the present case, the “remunerative work that the [applicant] was undertaking”, within the meaning of s 23(1)(c) of the VE Act, may be described as building work (including carpentry and scaffolding construction), defence service work, and police service work (including criminal investigation and law enforcement, administrative and clerical work, criminal prosecution and administration of justice support or ancillary work).
107. On the basis of the medical evidence before it, the Tribunal is reasonably satisfied, and finds, that the applicant, by reason of incapacity from his war-caused diseases (in particular, his PTSD), is prevented from continuing to undertake remunerative work within the abovementioned description.
108. The question then arises as to whether the applicant’s incapacity from his war-caused diseases is the only factor preventing him from continuing to undertake remunerative work within the abovementioned description, or whether there is any other factor which “plays a part [in] or contributes to” his being prevented from continuing to undertake such remunerative work: Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1 at 5; Hendy (above) at 54.
109. In the first place, the Tribunal is reasonably satisfied, on the basis of the applicant’s evidence and the medical evidence, and finds, that none of the applicant’s non-war-caused or non-defence-caused injuries or diseases – namely, fracture of the 3rd right metatarsal, cervical spondylosis, hypothyroidism, sleep apnoea, and obesity – has been, or is, a factor playing any part in, or contributing to, his being prevented from continuing to undertake remunerative work within the abovementioned description.
110. The respondent submitted, however, that there are other “factors which played a part in the applicant being prevented from continuing remunerative work within the WA Police”, namely:

“a complaint of misconduct which was sustained on investigation; the judgment of his superior officers that his misconduct had brought discredit on the Police Service; his response to the course of events arising from the complaint and its investigation.”

The respondent further submitted that there are other “factors which play a part in preventing the applicant from continuing to undertake the remunerative work that he was undertaking for another employer”, namely:

“the adverse reference which would be given by the WA Police [Service] as a result of his misconduct; ... the psychological effect of the complaint of sexual harassment and of the investigation on him; the psychological effect of events in his police service on him; his personal inclination not to work; and his age.”

111. As regards the applicant’s being prevented from continuing to undertake remunerative work within the Western Australia Police Service, the Tribunal notes that the abovementioned matters referred to in the respondent’s submission, relating to the complaint of misconduct, its investigation and the consequences thereof, did occur within the period of approximately 12 months prior to the cessation of his employment with the Western Australia Police Service, but the Tribunal does not accept that any of those matters played a part in, or contributed to, the cessation of that employment. The Tribunal is reasonably satisfied, and finds, that the applicant’s incapacity from his war-caused PTSD was the only factor which caused him to be retired from the Western Australia Police Service on medical grounds on 20 July 2004 and thereby prevented him from continuing to undertake that employment.
112. Likewise, as regards to the applicant’s being prevented from continuing to undertake, with an employer other than the Western Australia Police Service, the remunerative work that he had previously undertaken, the Tribunal is reasonably satisfied, and finds, that the applicant’s incapacity from his war-caused PTSD is the only factor preventing him from continuing to undertake that remunerative work. On the basis of the applicant’s evidence, the Tribunal is not satisfied that any of the abovementioned matters referred to in the respondent’s submission has played or is playing a part in, or has contributed or is contributing to, preventing him from continuing to undertake that remunerative work.
113. The Tribunal concludes, therefore, that the first limb of s 23(1)(c) of the VE Act – namely, that the applicant is, by reason of incapacity from war-caused diseases alone, prevented from continuing to undertake remunerative work that he was undertaking – is satisfied in this case.
114. In order to satisfy the second limb of s 23(1)(c) of the VE Act, the applicant must, by reason of his being prevented from continuing to undertake the relevant remunerative work, be suffering a loss of salary or wages that he would not be suffering if he were free from the war-caused incapacity.
115. The second limb of s 23(1)(c) of the VE Act must, however, be read in conjunction with s 23(3)(a) of that Act: Forbes v Repatriation Commission [2000] FCA 328; (2000) 101 FCR 50 at 53. Section 23(3)(a) provides that, for the purpose of s 23(1)(c), a veteran who is relevantly incapacitated shall not be taken to be suffering a loss of salary or wages by reason of that incapacity if the circumstances specified in subpara (i), (ii) or (iii) are satisfied. The respondent submitted that the matters referred to in paragraph 110 (above) also constitute reasons (other than the applicant’s war-caused incapacity) for his having ceased to engage in remunerative work, and/or for his being prevented from engaging in remunerative work, for the purposes of subparas (i) and/or (ii) of s 23(3)(a).
116. The Tribunal does not accept the respondent’s submission. The Tribunal, on the basis of the evidence before it, is reasonably satisfied, and finds, for the purpose of s 23(3)(a)(i) of the VE Act, that the applicant ceased to engage in remunerative employment with the Western Australia Police Service on 20 July 2004 by reason of his incapacity from his war-caused PTSD, and for no other reason or reasons. Likewise, on the basis of that evidence, the Tribunal is also reasonably satisfied, and finds, for the purpose of s 23(3)(a)(ii), that the applicant is incapacitated, or prevented, from engaging in remunerative work by reason of his incapacity from war-caused diseases, and for no other reason or reasons. For the sake of completeness, the Tribunal notes that, having regard to the evidence before it, the circumstance specified in subpara (iii) of s 23(3)(a) is not satisfied in this case.
117. For the purpose of s 23(1)(c) of the VE Act, the Tribunal is reasonably satisfied, on the basis of the applicant’s evidence, that, were the applicant free from his war-caused diseases – in particular, his PTSD – he would have continued to undertake remunerative work on a full-time basis with the Western Australia Police Service during the “assessment period” (which, the Tribunal notes, commenced on 23 July 2004 – that is, 3 days after the applicant was prevented, solely by reason of his incapacity from his war-caused PTSD, from continuing to undertake the remunerative work that he was undertaking with the Western Australia Police Service). Accordingly, the Tribunal finds that the applicant, by reason of his being prevented, by incapacity from war-caused PTSD, from continuing to undertake remunerative work that he was undertaking with the Western Australia Police Service, has been, and is, suffering, during the “assessment period”, a loss of salary or wages that he would not be suffering if he were free from that incapacity.

Finding

118. The Tribunal finds, therefore, that the applicant is, by reason of incapacity from his war-caused diseases alone, prevented from continuing to undertake remunerative work that he was undertaking and is, by reason thereof, suffering a loss of salary or wages that he would not be suffering if he were free from that incapacity. Accordingly, the Tribunal finds that the eligibility criterion for the intermediate rate of pension specified in para (c) of s 23(1) of the VE Act is satisfied in the applicant’s case.

CONCLUSION

119. The Tribunal concludes, therefore, that the applicant is not eligible for the special rate of pension pursuant to s 24 of the VE Act, but that the applicant is eligible for the intermediate rate of pension pursuant to s 23 of the VE Act. It is common ground that, in the event that the Tribunal were to determine that either the special rate of pension or the intermediate rate of pension was payable to the applicant, the date of effect of that determination would be 23 July 2004.

DECISION

120. For the above reasons the Tribunal sets aside the decision of the VRB dated 19 April 2005 and, in substitution therefor, decides that the intermediate rate of pension is payable to the applicant, pursuant to s 23 of the VE Act, with effect from 23 July 2004.
     

I certify that the 120 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed: ....................[Sgd Y Maker]......................

Associate

Dates of Hearing 13-15 March 2007

Date of Decision 30 May 2007

Counsel for the Applicant Mr R Grayden

Solicitor for the Applicant Hammond Worthington

Counsel for the Respondent Ms J MacDonnell

Solicitor for the Respondent Australian Government Solicitor