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Farnaby and Military Rehabilitation and Compensation Commission [2008] AATA 603 (11 July 2008)

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Farnaby and Military Rehabilitation and Compensation Commission [2008] AATA 603 (11 July 2008)

Last Updated: 15 July 2008

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Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 603

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2003/85

GENERAL ADMINISTRATIVE DIVISION
)

Re
MARK GEORGE FARNABY

Applicant
And
MILITARY REHABILITATION & COMPENSATION COMMISSION

Respondent

DECISION

Tribunal
The Hon R J Groom (Deputy President)
Dr J Campbell (Part-Time Member)

Date 11 July 2008

Place Hobart

Decision
The Tribunal affirms the decision under review.

[Sgd The Hon RJ Groom]
Deputy President

CATCHWORDS

COMPENSATION - Safety Rehabilitation and Compensation Act 1988 - RAN recruit claiming PTSD and personality disorder - "bastardisation" at RAN Training Establishment - sexual abuse by sponsor - whether applicant complied with notice and claim provisions of 1930 Act - whether "reasonable cause" - whether "injury" and/or "disease" - whether applicant suffering any type of mental injury or disease - decision affirmed


Safety Rehabilitation and Compensation Act 1988, s124

Commonwealth Employees Compensation Act 1930, ss. 4(1), 9(1), 10(1), 16(1)(i), (ii), 16(4)(a)(ii), (b)(ii)

Commonwealth Acts Interpretation Act 1901, s15AA


Bowring and Comcare Australia No T95/117 dated 9 August 1996

Spear and Comcare No Q96/354 dated 8 July 1988

Prospect Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Insurance Commission of Western Australian v Container Handlers Pty Ltd [2004] HCA 24; (2004) 206 ALR 335

Palgo Holdings Pty Ltd v Gowans [2005] HCA 28.

Banks v Comcare [1996] FCA 1490

Tralongo and MRCC [2004] AATA 124

Re Hairis and Comcare (1991) 23 ALD 379

Weston v Great Bolder Gold Mine Ltd [1964] HCA 59; (1964) 112 CLR 30

Frazer and Military Rehabilitation and Compensation Commission [2004] AATA 1403

Commonwealth v Bourne [1960] HCA 26; (1960) 104 CLR 32

Commonwealth v Rutlege [1964] HCA 63; (1964) 111 CLR 1

Connair Pty Ltd v Frederiksen [1979] HCA 25; (1979) 142 CLR 485)

Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292

Hatzimanolisis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473

Comcare v Mooi (1996) 69 FCR 439

Comcare v Luck [1999] FCA 100; (1999) 29 AAR 403)


REASONS FOR DECISION


11 July 2008
The Hon R J Groom (Deputy President)
Dr J Campbell (Part-Time Member)

INTRODUCTION

  1. The applicant served in the Royal Australian Navy ("the navy") from 1 October 1968 until 1 January 1979.
  2. On or about 24 January 2002 the applicant claimed compensation under the Safety Rehabilitation and Compensation Act 1988 ("the Act") for an injury or disease caused by his employment in the navy.
  3. He claimed that he suffered PTSD as a result of "physical and sexual abuse" which he alleged occurred when he was at HMAS Leeuwin, a recruit training facility in Western Australia.
  4. The applicant had joined the navy on 1 October 1968 as a 15 year old recruit. He was posted to Leeuwin some six days later. The applicant remained at Leeuwin until 30 September 1969. He alleges that his maltreatment primarily occurred in the first six months of his period of service at Leeuwin.
  5. As the alleged causes of the injury or disease were the events at Leeuwin in 1968 and 1969 the Transitional Provisions in section 124 of the Act apply. The applicant is therefore not entitled to compensation under the Act unless compensation was payable for the injury or disease under the Commonwealth Employees Compensation Act 1930 ("the 1930 Act").
  6. The applicant's claim for compensation was disallowed on 28 June 2002. On 26 July 2002 the applicant requested a reconsideration of the decision. On 22 April 2003 a reviewable decision was made affirming the determination of 28 June 2002.
  7. On 8 May 2003 the applicant applied to this Tribunal for a review of the decision made on 22 April 2003.
  8. The hearing of this review application commenced in Hobart on 23 January 2006 when a preliminary issue was considered and determined by the Tribunal. It resumed on 2 April 2008 and continued on 3, 4, 7, 8, 9, 10, 11 and 14 April 2008. Mr R Browne with Ms C Gregg appeared for the applicant and Mr B Morgan for the respondent.
  9. Thirteen witnesses gave evidence at the hearing. They were the applicant, his former wife Ms Robyn Kim, his sister Ms Ann Strickland, former recruits at Leeuwin - Mr Graeme Frazer, Mr Stephen Purchase, Mr Kieth Pratt and Mr Robert Harley, psychiatrists Dr Sale, Dr Burges Watson and Professor Pridmore and general practitioners Dr Welch and Dr Roffe.
  10. A substantial number of documentary exhibits were tendered by the parties and received into evidence including the T Documents lodged pursuant to section 37 of the Administrative Appeals Act 1975.

THE ISSUES

  1. The principal issues to be determined by the Tribunal are:

(a) Was notice given and the claim made as required by section 16(1) of the 1930 Act, and if not does the applicant satisfy the exceptions in section 16(1)(i) and (ii) of that Act?

(b) Does the applicant suffer from an injury and/or disease within the meaning of those terms in the 1930 Act?

(c) If yes to (b) then is the applicant incapacitated for work as a result of that injury and/or disease?

  1. The Tribunal will now give detailed consideration to each of those issues and make decisions on them.

SECTION 16 OF THE 1930 ACT

  1. Section 16 of the 1930 Act provides as follows:

"The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made -

(a) within six months from the occurrence of the accident; or
(b) in case of death - within six months after advice of the death has been received by the claimant:
Provided always that -
(i) the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and
(ii) the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause".

  1. It is noted that a failure to comply with the requirements of section 16 of the 1930 Act was first raised by the delegate of the Department of Veterans' Affairs in her determination dated 28 June 2002.
  2. At the hearing Mr Morgan for the respondent contended that section 16 had not been complied with. He submitted that no notice had been served on the Commissioner as required by the 1930 Act. Mr Morgan argued that the Office of Commissioner was abolished and replaced by a new Commonwealth authority "with separate and distinct functions" and that the Transitional Provisions in the Act did not permit a claim to be served on the new authority rather than on the Commissioner. In support of this proposition he cited an unreported decision of this Tribunal in Bowring and Comcare Australia No T95/117 dated 9 August 1996.
  3. We are not persuaded that there is merit in this submission. If accepted it would mean that if notice was not served on, or a claim not lodged with, the Commissioner before 1 December 1988 when the Office of Commissioner ceased to exist, that claim could not be further considered.
  4. The symptoms of many types of injuries including "mental injuries" may not become apparent for many years after the work-related cause has occurred. If this strict interpretation were accepted many potential claimants would be denied the opportunity to pursue a workers' compensation claim. In our view the Transitional Provisions make it plain that the legislature did not intend such a result. It would clearly defeat the essential purpose of those provisions. That purpose is to allow claims for compensation under the 1988 Act but based on an entitlement to compensation under, in this case, the 1930 Act.
  5. This particular point was considered by Deputy President Forgie in Spear and Comcare No Q96/354 dated 8 July 1988. The relevant Act in that case was the 1971 Act. Deputy President Forgie said at paragraph 52 of that decision as follows:

"The 1988 Act has no provision to the effect that a claim may be served on Comcare rather than on the Commissioner to whom it had to be given under the 1971 Act. That must be implied from the general provisions giving Comcare power to do all things necessary or convenient to be done for, or in connection with, its functions (section 70) and also from section 128. Section 128 provides that any liability of the Commonwealth or of a Commonwealth authority under, among others, the 1971 Act, shall, to the extent that it has not been discharged before 1 December, 1988, be taken to have been incurred by, in the circumstances of this case, Comcare".


  1. The purposive approach to interpreting a statute was recognised at common law and is now firmly established in statute. Section 15AA of the Commonwealth Acts Interpretation Act 1901 states as follows:

"In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object".


  1. The approach is now widely recognised by Australian courts. (see Prospect Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at p381 and also Insurance Commission of Western Australian v Container Handlers Pty Ltd [2004] HCA 24; (2004) 206 ALR 335 at 365 per Kirby J and Palgo Holdings Pty Ltd v Gowans [2005] HCA 28.
  2. A view expressed by McHugh JA in Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 302 is helpful. His Honour said:

"It is not only when Parliament has used words inadvertently that a court is entitled to give legislation a strained construction. To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved".


  1. The Tribunal therefore finds that it is implied by the legislative scheme that service on Comcare is sufficient to ground a claim based on the 1930 Act.
  2. It was further argued on behalf of the respondent that the respondent was prejudiced by the delay and that the exceptions in sections 16(1)(i) and (ii) are not satisfied.
  3. In the present case the applicant was not aware that he may be suffering an injury or disease caused by events at Leeuwin until after his chance meeting with Ms Nalder at the Trout Hotel in North Hobart. Ms Nalder worked for the Commonwealth Rehabilitation Service. It was following that meeting, which probably occurred in December 2001, that the applicant first gained knowledge that he may be suffering an injury or disease as a result of his employment. He said in correspondence (T13):

"It was only when I presented myself to Commonwealth Rehab and Vietnam Vets Counselling Service psychologists that I realised what had happened to me. With support from these people I have started to cope more with my symptoms and have recovered memories so far suppressed. 16(4) seems to cover this claim as I filed for PTSD when diagnosed with this by psychologist Peter Nelson and Dr M Welch MD".


  1. The applicant lodged his claim for compensation on or about 24 January 2002. This was only a matter of weeks after he first became aware that he may have a compensable injury or disease. A claim is also notice. (See Comcare v Luck [1999] FCA 100; (1999) 29 AAR 403).
  2. A failure to understand or appreciate the symptoms of an injury or disease and their cause has been recognised as a reasonable cause for want of a notice or a claim. (see the discussion by Kiefel J in Banks v Comcare [1996] FCA 1490 and also the decision of this Tribunal in Tralongo and MRCC [2004] AATA 1242).
  3. The reasons for the applicant's failure to promptly report the incidents of physical and sexual abuse whilst at Leeuwin are explained to the Tribunal's satisfaction in the evidence before it. The prevailing culture at Leeuwin clearly discouraged the reporting of mistreatment of the kind the applicant was subjected to. There are well recognised and complex reasons for a young person not reporting sexual abuse. (see Dr Sale's explanation at p.208 of the Transcript)
  4. The Tribunal concludes that there is present in this application a "reasonable cause" within the meaning of that term in section 16(1)(i) and (ii) of the 1930 Act.
  5. As the delay in giving notice and making a claim was occasioned by a reasonable cause it is not necessary to further consider the question of prejudice.
  6. As far as the "disease" claim is concerned we concludes on the facts that the provisions in section 16(4)(a)(ii) and (b)(ii) are satisfied. The notice was given "as soon as practicable" and the claim made "within six months after the employee first became aware that he was suffering from the disease".
  7. The applicant's claim for compensation was therefore properly before the original decision-maker and can now be considered by this Tribunal on its merits.

DOES THE APPLICANT SUFFER FROM AN INJURY OR DISEASE WITHIN THE MEANING OF THOSE TERMS IN THE 1930 ACT?

  1. The applicant alleges that in the first 12 twelve months of his service at Leeuwin, but primarily in the initial 6 months, he was assaulted, harassed and intimidated on numerous occasions by other recruits. He alleges that he was also subjected to sexual abuse by a navy appointed "sponsor" who he stayed with on approved weekend leave from Leeuwin.
  2. It is claimed that as a result of these incidents the applicant has suffered a mental injury or disease namely either post traumatic stress disorder or a personality disorder.

BACKGROUND FACTS

THE APPLICANT'S EARLY LIFE

  1. The applicant spent his childhood in England. The evidence indicates a relatively happy childhood and normal upbringing. He attended grammar school in Doncaster England and was a reasonably good student. He had a number of friends and enjoyed camping and other outdoor activities. His father had served overseas in the army and later became a policeman. He had also worked as a debt collector. The applicant described him as a "disciplinarian" and said he was "pretty silent and uncommunicative". The applicant had a good relationship with his mother. The family, including the applicant's sister, Ann, moved to Australia and eventually settled in South Australia. This was in 1966 or 1967. He was then about 14 years of age. The applicant had always been keen on joining the navy. He joined the Royal Australian Navy on 1 October 1968 at the age of 15 years and 6 months. Shortly afterwards he travelled to Leeuwin in Western Australia to undertake his recruit training.

THE INCIDENTS AT LEEUWIN

  1. The assaults, harassment and intimidation included the following:
  2. The applicant states that he was never involved in assaulting or bullying anyone else at Leeuwin except that on one occasion after being whipped with a wet tea towel by a recruit named Pratt he responded by stabbing Pratt in the arm. This resulted in Pratt having some stitches in the wound. That incident was never reported. Kieth Pratt gave evidence at the hearing.
  3. There is evidence before the Tribunal of a pervasive general culture at Leeuwin of "bastardisation" of new recruits which included assaults, bullying, intimidation and victimisation of a kind which the applicant says he was subjected to.
  4. After considering the applicant's evidence and all of the relevant material before us we are satisfied that the applicant did suffer the assaults, harassment and intimidation whilst a recruit at Leeuwin as he alleges. The allegations made by the applicant were consistent with the general culture of bastardisation present at Leeuwin. This unacceptable and wrongful conduct was obviously condoned by those responsible for the well-being of these very young recruits.

SEXUAL ABUSE BY SPONSOR

  1. The navy arranged for sponsors to take young recruits from Leeuwin into their homes for weekend leave.
  2. The applicant states that he was sponsored by a single man who lived with his mother. He cannot recall the name of this sponsor although he has made enquiries to try and find out the person's name. He said there was only one bed available to him in the house. It happened to also be the male sponsor's bed.
  3. When sleeping in the sponsor's bed the sponsor on at least two occasions fondled the applicant's penis. It is possible the sponsor administered a drug to the applicant in a cup of hot chocolate prior to bedtime. The applicant believes that on two occasions the sponsor may have raped him whilst he slept in the bed.
  4. When he was a passenger in the sponsor's vehicle the sponsor frequently touched the applicant on his leg and/or genital area. On one occasion in the back of the sponsor's panel van the sponsor placed the applicant's hand on the sponsor's penis and fondled the applicant's penis. The sponsor also attempted to rape the applicant in the back of the panel van.
  5. The applicant says that he did not report these crimes to anyone at Leeuwin as he feared that he may be assaulted. Also the officer he would have to report to and the sponsor had mutual friends.
  6. Although there is no corroborative evidence and there have been variations in the accounts provided by the applicant to medical practitioners and counsellors and others about the details of the sexual assaults we are satisfied that the applicant did suffer sexual abuse by his navy approved sponsor as claimed.

THE APPLICANT'S CAREER IN THE NAVY

  1. After leaving Leeuwin the applicant was posted to HMAS Vampire. He said that he had begun drinking at that time and frequently drank in hotels in Sydney and wherever the ship went. He said that he was drunk whenever he was on shore leave. After three months or so on Vampire he deserted with three other young men in Brisbane. He was absent from 26 April 1970 till 21 July 1970. He and the other sailors involved obtained casual jobs. He gave himself up and on the 30 July 1971 he was sentenced to 48 days punishment. He spent some time in the cells.
  2. In August 1970 the applicant was posted to HMAS Cerberus and remained at that base until 18 January 1971. He underwent an engineering course and then on 18 January 1971 was posted to HMAS Supply, an oil tanker. He served on HMAS Supply for approximately five years.
  3. Whilst serving on HMAS Supply the applicant was involved in a fight at the Wheatsheaf Hotel in Hobart with a Lieutenant Thierderman. The applicant was court-martialled and on the 3 December 1974 was sentenced to 28 days detention.
  4. He was later posted to HMAS Nirimba from 12 January 1976 until 10 October 1977. This was the navy apprentice school at Quakers Hill in Sydney. He said he ran the cafe at Nirimba for about 12 months. The applicant said he commonly used drugs when he was at Nirimba although he first used drugs when he was actually serving on HMAS Supply.
  5. In 1977 he was posted to the aircraft carrier HMAS Melbourne. He spent about a year on that ship and was in charge of fuel and fresh water handling.
  6. On 21 August 1978 he was posted to HMAS Kimbla which was an oceanographic vessel. He then resigned from the navy in 1979.

AFTER THE NAVY

  1. Before leaving the navy the applicant had met Robyn Whittle. They initially lived together in Sydney. After leaving the navy he and Robyn moved to Dromedary in Tasmania. They lived there together for some months. They later lived at Magra and then at New Norfolk. The applicant worked as a postman for five or six years based at Glenorchy initially and then at New Norfolk.
  2. Both the applicant's parents died in England on the same day in October 1980. His mother died of a heart attack and the father committed suicide later that day. The parents had returned to England in 1970 soon after the applicant had completed his period of training at Leeuwin. He did not see his parents again before they died.
  3. The applicant married Robyn Whittle in 1981 in New Norfolk. There are two children from the relationship.
  4. In November 1984 the applicant and his wife purchased a rural property at Kellevie. They moved there to live however in 1986 the marriage failed and they then commenced to live separately.
  5. Apart from his work as a postman for some 6 years at Glenorchy and New Norfolk the applicant had also obtained casual work through the late 1980's and early 1990's with his ex-wife's father, Tasman Whittle, at GT Tyres in Moonah. He personally built the family house in New Norfolk and also a house on the property at Kellevie. He had also worked as a casual rigger for a period and on construction sites and also had been engaged cutting fire wood. In the late 1990's the applicant worked as a youth worker with the Sorell Council. This was the last paid work the applicant was engaged in.
  6. In or about December 2001 the applicant met Ms Anne Nalder, a Commonwealth Rehabilitation Service case manager. They met by chance at the Trout Hotel in North Hobart. Ms Nalder asked the applicant what he did for a living and he mentioned that he had served in the navy and on HMAS Leeuwin. He was later referred to Mr Peter Nelson, of the Vietnam Veterans' Counselling Service. He believes this was either late 2001 or early 2002. Later Ms Nalder referred the applicant to Dr Welch. Dr Welch saw the applicant on 13 February 2002 and diagnosed Post Traumatic Stress Disorder. On 11 June 2003 the applicant obtained a disability support pension for PTSD.

INJURY AND/OR DISEASE?

  1. Section 9(1) of the 1930 Act provides as follows:

"If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule in this Act"


  1. Section 4(1) of that Act "injury" means:

"any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury".


  1. Section 10(1) of that Act provides that:

"Where -

(a) an employee is suffering from a disease and is thereby incapacitated for work; or

(b) the death of an employee is caused by a disease, and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment".


  1. Section 4(1) defines "disease" in the following terms:

"includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease".


  1. There is no definition of "mental injury" in the 1930 Act. Some guidance is provided by the decision in Re Hairis and Comcare (1991) 23 ALD 379 when the Tribunal said "... a direct injury to the brain would be a physical injury, whilst something occasioning harm to the mind would be a mental injury". (Para 51)
  2. Assaults in the workplace may not be "accidental" events in the ordinary meaning of the word but they have been held to be an "injury by accident" for the purpose of workers' compensation. (see Weston v Great Bolder Gold Mine Ltd [1964] HCA 59; (1964) 112 CLR 30 and also Frazer and Military Rehabilitation and Compensation Commission [ 2004] AATA 1403. The circumstances in Frazer were markedly similar to those in the present case).
  3. Mr Morgan properly conceded that any mental injury caused by the sexual abuse by the sponsor arose "out of or in the course of" the applicant's employment. (See Hatzimanolisis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473).
  4. The disease provisions in the 1930 Act were much narrower than exist in the present Act. As can be seen in paragraph 59 above the disease must be due to the "nature of the employment". It must be incidental to the nature or character of the employment and not a condition which arises out of the particular experiences of the employee concerned. (see Commonwealth v Bourne [1960] HCA 26; (1960) 104 CLR 32, Commonwealth v Rutlege [1964] HCA 63; (1964) 111 CLR 1 and Connair Pty Ltd v Frederiksen [1979] HCA 25; (1979) 142 CLR 485).
  5. Even though there is persuasive evidence of a culture at Leeuwin condoning "bastardisation" of the kind experienced by the applicant, in the opinion of the Tribunal any resultant disease cannot be said to be due to the "nature" of the applicant's employment. Any disease he may suffer is really due to the particular treatment he received at the hands of fellow recruits. The sexual abuse by the sponsor is obviously not due to the nature of the applicant's employment. Although we have concluded that the "disease" provisions in the 1930 Act do not apply the Tribunal nevertheless will proceed to consider whether the applicant is suffering from any compensable mental condition whether it be a mental injury and/or a disease.
  6. This has been a very lengthy hearing. A vast amount of oral and written evidence is now before us. Because of that quantity of evidence and the nature of the applicant's compensation claim we intend to now detail portions of the evidence which we consider particularly relevant to the central issue. That issue is whether the applicant has suffered a mental injury and/or disease as a result of the mistreatment and abuse he was subjected to whilst a recruit at Leeuwin. As the Tribunal has already found that Mr Farnaby was subjected to sexual abuse by his sponsor and also assaults, harassment and intimidation at Leeuwin as claimed we do not consider it necessary to detail the evidence of Messrs Frazer, Purchase, Pratt and Harley. We have, of course, given consideration to all of the evidence provided by those witnesses.
  7. The Tribunal will now consider the medical and other evidence to determine whether we are satisfied to the standard required that the applicant is suffering from a compensable mental condition whether it be an injury or a disease.

IS THE APPLICANT SUFFERING A MENTAL INJURY OR DISEASE?

THE APPLICANT'S EVIDENCE

  1. On the issue of symptoms of PTSD Mr Farnaby in his statement of 23 February 2005 details the following:
  1. In a further statement dated 16 April 2007, Mr Farnaby gave further details of the sexual abuse by the sponsor. He acknowledged that he felt ashamed and humiliated by these events, and was resigned to never communicating the occurrence to any person. Mr Farnaby records that he has never talked about certain aspects of the sexual abuse prior to June 2006 and, on that occasion, it was after viewing records of a medical examination conducted by the Australian Government Health Service.
  2. In oral evidence, Mr Farnaby added the following:
  1. Further in oral evidence, Mr Farnaby, when asked questions concerning his consultation with Professor Pridmore on 13 September 2004 (Exh R2), stated:
  1. Mr Farnaby, in response to questions asked by his counsel about Dr Sale’s report of 3 April 2007 (Exh A7), said that his symptoms included:
  1. In response to questions raised in response to Ms Strickland’s evidence, Mr Farnaby said that:
  1. Mr Farnaby described the loss of a right front tooth while serving on HMAS Vampire in 1969. This loss was said to have occurred when Mr Pratt struck him with a fist when he was halfway out of the hatch. Mr Farnaby believed he was knocked out for a few seconds.
  2. When answering questions asked in cross-examination, Mr Farnaby said:
  1. In response to a question from the Tribunal, Mr Farnaby described the panel van incident in the following terms (Transcript p142-143):

And what happened then?—“-Oh, we had a look around outside, you know, just checking things out and whatever and a bit of a chat and then sort of when it was fully dark we got into the back and said goodnight or whatever and I was trying to get to sleep when he started touching me and I’m saying no, you know, and then he tried to rape me. He jumped on top of me at first and tried to push my legs up and then sort of I was kicking and screaming and then turned over – I remember being turned over as well, so I was on my hands and knees. I’m fighting and – so this seemed to go on for hours, but it was probably just a couple of minutes sort of things, yes. It was quite intense. He was very aroused I suppose, yes”.

So what happened after that occurred? –“-Well, there was lots of kicking and screaming and punching and I ended up down near the doors of the panel van with a blanket around me and he got in the front of the panel van, you know, climbed over the seats”.

He got in the front? –“-He got in the front, yes. Saying to me it’s all right, you know, sort of I didn’t mean it, you know, don’t tell anybody, blah, blah, blah, and that went on for an hour or so, you know, he was trying to calm me down and then I stayed in the back and he stayed in the front and when it got light we drove back and he dropped me off at Leeuwin”.

EVIDENCE OF MS STRICKLAND

  1. Ms Strickland, the sister of Mr Farnaby in her written statement (Exh A10), detailed the following:
  1. In oral evidence, Ms Strickland said:

EVIDENCE OF MS KIM

  1. In a statement dated 19 June 2006 (Exh R27), Ms Kim, the ex-wife of Mr Farnaby stated:
  1. In oral evidence, Ms Kim stated:
  1. In oral evidence in response to questions asked in cross-examination, Ms Kim stated:
  1. In answer to questions from the Tribunal, Ms Kim stated:

EVIDENCE OF DR WELCH.

  1. In a medical report dated 28 September 2004 (Exh A18) Dr Welch, a general practitioner, stated that he saw Mr Farnaby on three occasions in 2002, after referral by a CRS rehabilitation provider. In a consultation dated 13 February 2002, Dr Welch records a relevant history of Mr Farnaby experiencing sexual abuse by an older male sponsor, as well as physical abuse by older school mates during student initiation at HMAS Leeuwin. Dr Welch describes Mr Farnaby as feeling angry and upset since, with frequent symptoms of lowered mood, anxiety and panic, suicidal ideas, social withdrawal, insomnia, labile emotions and even dissociative symptoms. Dr Welch records Mr Farnaby as claiming he used alcohol frequently to diminish these symptoms. Dr Welch considered Mr Farnaby to have features of a depressive disorder and a post traumatic stress disorder. Dr Welch records prescribing Lovan (an anti-depressant) and referring him to a psychologist (Mr Nelson) for therapy.
  2. In oral evidence, Dr Welch said that he had no recollection as to whether Mr Farnaby gave details of the nature of his sexual abuse and, as it was an initial general fact finding consultation, he may not have explored that subject in detail. Dr Welch said that he understood the symptoms nominated in his written report may, in part, be his medical interpretation of what he was told, but it was his belief that such symptoms as anger and being upset had existed since Mr Farnaby’s time at HMAS Leeuwin. As to the other symptoms, he was unaware as to when they commenced. Dr Welch recorded that Mr Farnaby said that he suppressed the memories until very recently.

EVIDENCE BY DR ROFFE

  1. In a statement dated 4 April 2008 (Exh A20), Dr Roffe, a general practitioner, said that Mr Farnaby had been a patient of his since 1994. Dr Roffe noted that at some time in 2002, he had been informed that Mr Farnaby had been diagnosed as suffering PTSD. In oral evidence, Dr Roffe confirmed that on 24 June 2002 Mr Farnaby, during a consultation, informed him of a psychiatric diagnosis made by Dr Welch, as well as seeking treatment for an anal disorder.

EVIDENCE BY DR SALE – CONSULTANT PSYCHIATRIST

  1. Dr Sale conducted an assessment of Mr Farnaby on 28 May 2003. In his report dated 28 May 2003 (Exh A19), he detailed a general history of Mr Farnaby’s life. Dr Sale noted that Mr Farnaby had suffered from no significant general health problems. In relation to his psychological health, Dr Sale noted that Mr Farnaby’s most prominent difficulty has been his excessive use of alcohol which, although long standing, had yet to cause general health consequences. Dr Sale noted that there was no particular pattern to Mr Farnaby’s excessive drinking.
  2. Dr Sale also noted that Mr Farnaby complained of chronic insomnia – both initial and middle insomnia. Further, Dr Sale records that sleep is interrupted by nightmares of no particular theme.
  3. Dr Sale records Mr Farnaby complaining of:
  1. Dr Sale said Mr Farnaby had told him of running the gauntlet during the initiation ceremony at HMAS Leeuwin, and of the bashings and scrubbings on about four occasions. In addition, Dr Sale details Mr Farnaby as having experienced sexual abuse by his sponsor in his bed and car, although his recall of specific events was extremely limited. Dr Sale records Mr Farnaby as stating that he finally disclosed this matter to Peter Nelson at VVCS.
  2. Dr Sale in comment made the following observations:
  1. In a further report dated 6 August 2003 (Exh A20), Dr Sale concluded that Mr Farnaby’s alcohol abuse was secondary to the abuse he experienced at HMAS Leeuwin, together with a non-specific contribution arising out of spending time in the navy, where alcohol consumption was sub-culturally the norm. Further, it is probably a form of self-medication, in that it provides temporary relieve of tension and insomnia, symptoms commonly associated with PTSD.
  2. Dr Sale confirmed his opinion in a further report dated 18 May 2005 (Exh A21), following his review of Mr Farnaby’s statement of 23 February 2005 and Dr Welch’s report of 28 September 2004.
  3. In a further report dated 12 August 2005 (Exh A22), Dr Sale notes that Mr Farnaby’s failure to raise complaints until relatively recently is far from uncommon. Dr Sale considered that the relevant factors were:
  4. In another report dated 9 June 2006 (Exh A23), Dr Sale:
  1. On 3 April 2007, Dr Sale provided another report (Exh A7), having again met with Mr Farnaby, and having perused further documentation. Dr Sale notes the following:
  1. In this report, Dr Sale noted Mr Farnaby’s complaints of symptoms included:
  • Flashbacks -
vivid, disturbing memories of a person he describes as a paedophile and an attempted rape, generally occurring as he is about to fall asleep.
  • Chronic insomnia -
addressed by his use of alcohol and staying up late.
  • Anxiety -
particularly in social situations or in crowds – expresses shortness of breath, perspires excessively and has palpitations. These symptoms have been present since the time he left the Navy.
  • Periods of depressed mood -
much improved since 2003 – no longer feels guilty
  • Irritability
  • Concentration -
has been poor, but improved.
  • Forgetfulness -
not improving.
  • Lethargy -
can be poor, but no longer as bad as four or five years ago.
  1. In general comment, Dr Sale noted that Mr Farnaby’s situation appears to have improved since the time of his original assessment. He noted Mr Farnaby to be in a stable relationship, some reduction in level of symptoms, using less alcohol and had discontinued taking an anti-depressant. Dr Sale continued to believe that the events at HMAS Leeuwin caused the damage experienced by Mr Farnaby and that such has then been maintained and extended by substance and alcohol abuse.
  2. In a report dated 13 April 2007 (Exh A31), Dr Sale commented in the following terms on the reports made by Dr Burges-Watson:
  1. In a report dated 14 March 2008 (Exh A24), Dr Sale observes that Mr Farnaby’s current complaints were:
  1. Dr Sale concluded that there had been no particular change in Mr Farnaby’s condition: he remains socially avoidant with a constricted affect, who is likely to be alcohol-dependent. Dr Sale believed Mr Farnaby had a limited work capacity because of his alcohol use and his problems with anxiety.
  2. In a report dated 26 March 2008 (Exh A32), Dr Sale addressed Mr Farnaby’s employment since leaving the Navy. Dr Sale made the following comments:
  1. Dr Sale considered that the record of employment suggests a very patchy involvement in employment since 1986.
  2. In oral evidence, Dr Sale detailed an extensive experience in psychiatry and, in particular PTSD, and personality disorder and co-morbidities which exist with PTSD (alcohol abuse). Dr Sale remained reluctant about making a diagnosis of personality disorder in the absence of a longitudinal view of an individual. Dr Sale repeated his earlier written opinion that the diagnostic psychiatric manual (DSM 1V) does not adequately cover the clinical sequelae arising from sexual abuse in childhood. In such situations, Dr Sale contends that a person may present with the effects of a secondary substance abuse, insomnia, chronic pain or depressive disorder – such co-morbid conditions in effect masking in part the symptomatology of an underlying PTSD, with a more common pattern being a constriction of affect.
  3. Dr Sale believed Mr Farnaby to have a rather constricted affect, with little sense of rapport on meeting. Dr Sale affirmed that Mr Farnaby’s problems with alcohol were reasonably likely to be secondary to the abuse at HMAS Leeuwin, as there was nothing else in his personal background that suggested he faced any particular risk of developing problems with alcohol. Dr Sale also emphasised that chronic abuse of alcohol will actually maintain insomnia, with alcohol being used to induce sleep and relieve tension. The induced sleep is not normal sleep and they tend to wake in the middle of the night.
  4. Dr Sale stated the reasons why children often fail to disclose sexual abuse are complex and include:
  1. In relation to late disclosures of such ‘guilty secrets’, Dr Sale considers that there is no general pattern, with, on occasions, the disclosure being tentative or testing the waters type of disclosure. Dr Sale considered that there was a culture at HMAS Leeuwin that inhibited making complaints generally as well as specifically.
  2. Dr Sale, in considering a diagnosis of personality disorder in Mr Farnaby, addressed the issues of cognition (no problem), affectivity (does have a problem), interpersonal functioning (does have difficulties as evidenced by a tendency to be somewhat isolative, and problems with his personal relationships). With such an appraisal, Dr Sale concluded that Mr Farnaby met diagnostic Criteria A(2), A(3) for a personality disorder. Further, Dr Sale considered that the condition has been enduring for many years; that this enduring pattern of behaviour (fecklessness) has led to periods of depression and repeated periods of suicidal ideation, which are outside the bounds of normal human behaviour. Dr Sale indicated that as regards a diagnosis of personality disorder, generally this should be evident during childhood/adolescence, with oppositional and behavioural problems, which is not apparent in Mr Farnaby’s case.
  3. Dr Sale was of a view that physical examination of a person with a suggested sexual abuse history should be undertaken with extreme caution during a psychiatric examination, for medico-legal purposes, as it might seem to be unnecessarily intrusive.
  4. Dr Sale was of the opinion that Mr Farnaby’s naval career was not a huge success, his occupational life patchy, and his family life has fallen apart. Dr Sale drew his opinion about Mr Farnaby’s naval career from his naval record and the lack of motivation detailed in a naval psychologist’s record of interview.
  5. In addressing the criteria for the diagnosis of PTSD nominated in DSM – IV- TR, Dr Sale considered that the attempted rape in the panel van was a traumatic event, in that it was an offence which involved a threat to his physical integrity. In such circumstances, Dr Sale concluded that Criteria A1 for a diagnosis of PTSD was satisfied, as indeed was Criteria A2, by virtue of Mr Farnaby’s nominated response to the incident. Dr Sale considered that the other experiences to which Mr Farnaby was exposed at HMAS Leeuwin (gauntlet running, nuggetting and scrubbing), were harmful behaviours which would probably cause intense fear and a sense of helplessness. In relation to the patchy recollections of Mr Farnaby about sexual activities in the sponsor’s bed, Dr Sale believed that such recollections were too vague to do much with.
  6. In addressing the issue of flashbacks, Dr Sale stated that Mr Farnaby reported a flashback type experience in his first interview which related to a knifing. (Such a comment is inconsistent with Dr Sale’s report of the first interview in which he describes nightmares of no particular theme, with no mention of a stabbing and/or knifing incident in the report). Dr Sale stated that at the second interview, the flashbacks were said by Mr Farnaby to relate to the sponsor and the attempted rape. Dr Sale was unsure as to whether they were flashbacks or intrusive memories. Dr Sale considered that Criteria B1 was met for the diagnosis of PTSD in that Mr Farnaby had recurrent and intrusive recollections of the event and that possibly Criteria B2 was met (recurrent nightmares). Dr Sale considered that Mr Farnaby met Criteria C4, C5, C6 in that he had diminished participation in significant activities, experienced feelings of detachment and estrangement from others and that he has a constricted affect, with periods of depression and irritability. Dr Sale considered that Mr Farnaby satisfied Criteria D2, D3 in that he reports difficulty concentrating and irritability as well as Criteria E and F (distress in social, occupational or other important areas of functioning, with the duration of such symptoms occurring over many years).
  7. Dr Sale stated that the symptoms of PTSD are far more intense in the first 12 months and then tend to settle down to a baseline level, where such things as nightmares tend to decrease in frequency as do some of the more obvious anxiety symptoms. Dr Sale also noted that there may be an adjustment in their life style, which may lead them to live in isolated locations and keep contact with others to minimum.
  8. In response to questions in cross-examination, Dr Sale stated:
  1. In response to questions in re-examination, Dr Sale stated:

DR BURGES WATSON, CONSULTANT PSYCHIATRIST

  1. In a report dated 6 September 2006 (Exh R20) Dr Burges Watson stated that Mr Farnaby described his current symptoms to include nightmares, finding it hard to get to sleep, images of sexual abuse and violence (“I don’t like going out and being around people”), panic attacks (sweaty, nervous and short of breath and that he was aggressive), when he should not be.
  2. Dr Burges-Watson reported Mr Farnaby as stating that he had not told anyone about what was happening at HMAS Leeuwin until a few years ago, although his sister was suspicious of why a young man living with his mother would sponsor a recruit. She asked questions about it and “she knew something was wrong”. Mr Farnaby also stated that he spent ten weekends "nearly consecutively", with the sponsor.
  3. Dr Burges Watson records Mr Farnaby as telling him that his nightmares (at worst) were nearly every night, and they were enough to drive him to thoughts of suicide. Dr Burges Watson further details Mr Farnaby as stating that he was currently drinking enough each night to get to sleep, but not as much as he had drunk in the past. It is further noted that some days he does not drink, sometimes two days at a time in the last two years and prior to that he would go without for weeks. Mr Farnaby is recorded as stating he never drank at sea but he used to drink a huge amount when he came into port.
  4. Dr Burges Watson reported Mr Farnaby as stating that nightmares and “flashbacks of stabbing somebody” and being sexually abused had emerged in 1981, at which time he stopped liking being around people, moved himself to the bush and wouldn’t talk to his wife.
  5. Dr Burges Watson notes that Mr Farnaby stopped going to see the sponsor when “he tried to mount me in the panel van”, that “he fought him off and that he thought the sponsor was drugging him at night time when he stayed at his home” – that he “only vaguely remembers things” and that he woke up with “a sore arse”.
  6. Dr Burges Watson records Mr Farnaby stating that both his memory and concentration were poor and that he prefers his own company.
  7. Prior to his second consultation with Mr Farnaby, Dr Burges Watson stated that he spoke with Ms Kim who he considered not to be a good witness as she was very vague in many of her responses. He notes Ms Kim as saying that she became aware of problems when Mr Farnaby got out of the Navy, which she described as “climbed inside himself” and “didn’t communicate”. Ms Kim is also reported as stating that he was not particularly affectionate, “probably” did not always sleep well, and that he did not like responsibility as either a father or a husband. Ms Kim also recounted the incident when Mr Farnaby sat in a chair with a gun to his head which was probably in 1983.
  8. During his second consultation, Dr Burges Watson recorded that Mr Farnaby described his current problems to include depression (sleeplessness), anxiety and did not like meeting and talking to people, and that his drinking was enough to get him to sleep.
  9. Dr Burges Watson considered there was limited, objective evidence of Mr Farnaby’s mental health over the relevant periods of time. He did not consider that either Mr Farnaby or Ms Kim were good witnesses. They were essentially the only witnesses to his behaviour and well being. He considered Mr Farnaby’s responses to be vague and lacking detail and, at best, his co-operation was half-hearted. Dr Burges Watson did not think that there was enough solid fact to make a final diagnosis.
  10. In his report of 6 September 2006, Dr Burges Watson also provided the following:
  1. In a further report dated 4 December 2006 (Exh R21) Dr Burges Watson, in noting that he had spoken with Mr Farnaby’s sister, Ann, concluded that the sister had not provided any information suggesting any major disturbance in the family, other than the death of her parents which was a very significant event. This coincided with the time many of his symptoms first appeared. Dr Burges Watson reports that the sister believed the period when he was absent without leave from HMAS Vampire was because he was unhappy on the ship. The parents returning to England would have been upsetting for Mr Farnaby, with Dr Burges Watson noting that it was at that time that he was given diazepam for difficulty in sleeping.
  2. In oral evidence, Dr Burges Watson confirmed that a physical examination of a patient by a psychiatrist has been recommended ever since he had been involved in psychiatry – although it does not always happen. Further, Dr Burges Watson, while acknowledging that a diagnosis could be made on the basis of subjective symptoms described by a patient in ordinary consultations, stated that, in legal matters, particularly matters of recovered memories, there must be objective confirmatory evidence before you can either make or disprove a diagnosis. In Mr Farnaby’s case, the only objective evidence was a raised pulse rate, which would indicate that he was anxious at the time. This was not unusual in a forensic examination. Dr Burges Watson confirmed that he was unable to find any evidence of any debilitating psychiatric disorders.
  3. In response to questions in cross-examination, Dr Burges Watson said:

PROFESSOR PRIDMORE – CONSULTANT PSYCHIATRIST

  1. In a medical report dated 13 September 2004, Professor Pridmore noted that:

“I’m not going to get into it with you.”

  1. Professor Pridmore outlined Mr Farnaby’s background. Mr Farnaby had described himself as an exceptional student in his last school in England, before coming to Australia at age 13. Mr Farnaby is reported as stating that his mother died of heart disease and within 12 months his father committed suicide by carbon monoxide poisoning.
  2. Professor Pridmore records Mr Farnaby as stating he had a strong Yorkshire accent and was picked on when he went to HMAS Leeuwin at age 15. He was forced to run the gauntlet, given cold baths, scrubbed until he bled and bashed most days, as well as being sexually abused by his sponsor every weekend for six months. Professor Pridmore detailed a brief outline of the remainder of his naval service.
  3. Professor Pridmore did not agree that Mr Farnaby satisfied the diagnostic criteria for PTSD, namely A1 (did not experience, witness or was confronted with an even or events that involved actual or threatened death or serious injury or threat to the physical integrity of the self or others) nor A2 (did not experience intense fear, helplessness or horror). Further, Professor Pridmore noted that while Mr Farnaby was angry about his treatment, he fails to satisfy Criteria B in that he does not persistently re-experience running the gauntlet or the other treatment he received at Leeuwin
  4. Professor Pridmore agreed with Dr Sale that Mr Farnaby’s “recall of specific events was extremely limited”. Further, Professor Pridmore concluded that Mr Farnaby takes excessive alcohol, is isolative, suffers panic attacks and distress, and that he is irritable and unable to co-operate with comprehensive examinations – there being no direct link between these symptoms and his Navy service, with Mr Farnaby not being totally incapacitated for work.
  5. Following a further assessment on 4 April 2005, Professor Pridmore provided a report dated 4 April 2005 in which he detailed the following:
  1. In response to questions asked in cross-examination, Professor Pridmore stated:
  1. In response to questions from the Tribunal, Professor Pridmore concluded that Mr Farnaby did not satisfy the criteria necessary for either a diagnosis of either alcohol abuse or alcohol dependence; that he has a difficult personality that has been influenced by his drinking, and his life of unemployment and the way he has spent his time over the years. If there is psychiatric diagnosis, Professor Pridmore would consider alcohol dependence first. He said he did not think he had a gross personality disorder.

FINDINGS IN RELATION TO THE MEDICAL EVIDENCE

  1. We are mindful that a clinical specialist, and in particular a specialist psychiatrist, when making a clinical assessment of an individual is dependent on the individual providing an accurate and reliable history of their circumstances. We note Dr Sale's cautionary reflection - "that if the history turns out to be inaccurate or unreliable, it affects the opinions that flow from that history".
  2. In assessing the accuracy and/or reliability of the history provided over time by Mr Farnaby, we note the following:
  1. As far as Mr Farnaby’s naval career is concerned, we find the following:
  1. We have given particular attention to Mr Farnaby’s post-service years. We find the following:
  1. We also note the death of Mr Farnaby’s parents in late 1980, as well as their return to England in 1970, after which there had been minimal contact. We note Mr Farnaby’s apparent response to his parents’ deaths and, in particular, to the circumstances of his father’s death. We observe the infrequent communication by Mr Farnaby with his sister.
  2. Mr Farnaby’s employment post-naval service was as a postman until 1984, working at various activities including a solo tyre repair outlet for his father-in-law in 1985-1986. For some eight years, until the mid nineties, he worked for his father-in-law at a tyre repair place at Moonah, after which he had various short-term employment as a Learner Rigger and an electrical assistant at Boyer; woodcutting, a two year part-time TAFE course and work as a youth worker in 2000/2001. Mr Farnaby was granted a disability support pension in 2003.
  3. Further, we note the symptoms complained of by Mr Farnaby post 2001. Mr Farnaby has detailed that such symptoms had existed since his early navy period at HMAS Leeuwin (difficulty with sleeping, outbursts of anger, frightened and withdrawn), while heavy drinking commenced while serving on HMAS Vampire. He said the use of illegal substances commenced while serving on HMAS Sydney. We note, that Mr Farnaby said that flashbacks commenced in 1981, as did his desire to isolate from people, avoid crowds, with subsequent development of suicidal thoughts and attempts to self-harm.
  4. Mr Farnaby detailed his sleeping problems, his nightmares, his angry outbursts, being anxious, abusing alcohol, experiencing flashbacks to sexual abuse, running the gauntlet, the stabbing, the bashings and the harassment. Mr Farnaby stated in oral evidence that his flashbacks had been occurring since 1968, but were worse after he left the navy, with the worst period being around 2000.
  5. After considering all of that evidence, we conclude that Mr Farnaby is not a reliable historian. He has provided a most inconsistent history on important issues critical to the diagnosis of any psychiatric disorder. It is in that uncertain context that the specialists psychiatrists have attempted to formulate an opinion.
  6. We are also mindful that the alleged events at HMAS Leeuwin are essentially as described by Mr Farnaby.
  7. In his initial opinion Dr Sale concluded that Mr Farnaby was suffering from chronic post traumatic stress disorder, complicated by alcohol abuse. In a later report of 9 June 2006, Dr Sale acknowledged that he had expressed some equivocation about the diagnosis of PTSD, as the relevant event occurred many years ago, and the overall clinical picture has been confounded by chronic alcohol abuse. At this time (June 2006), Dr Sale acknowledged Professor Pridmore’s diagnosis of personality disorder to be a reasonable conclusion. Dr Sale said that Mr Farnaby met the criteria for the diagnosis of personality disorder as in DSM-IV, although he would still prefer to use the term post traumatic stress disorder.
  8. In oral evidence, Dr Sale addressed the criteria for the diagnosis of PTSD nominated in DMS–IV-TR. Dr Sale considered all criteria were met. Dr Sale considered that Mr Farnaby had diminished participation in significant activities, experienced feelings of detachment and estrangement from others and that he has a constricted affect with periods of depression and irritability. Further, Dr Sale said he reports difficulty concentrating and irritability, as well as feeling distress in social, occupational and other important areas of functioning, with the duration of such symptoms occurring over many years.
  9. In detailing this opinion, Dr Sale made a number of statements, namely:
  1. Dr Sale first assessed Mr Farnaby in 2003. The data he had at that time to postulate that Mr Farnaby had a psychiatric condition was incomplete. Dr Sale considered Mr Farnaby to be a poor historian, was not the most articulate man to interview and had given different clinical histories to various specialists. Apart from Mr Farnaby’s written statements and oral evidence, the only navy record suggesting any symptomatology during his naval service is the record of November 1970, in which it states that Mr Farnaby then complained of having had insomnia for years and was treated with valium for a two week period.
  2. Although Dr Sale acknowledged that Professor Pridmore’s diagnosis of personality disorder was a reasonable conclusion, he continued to formulate a diagnosis of PTSD. In considering the diagnostic criteria for PTSD in DSM-IV-TR, we note that Dr Sale concludes that Mr Farnaby satisfies all criteria. This is at odds with the statements made by him in oral evidence which we have detailed. We point to the issues of isolation, employment and social and building activities, as well as the inconsistency and unreliability of material provided by Mr Farnaby about his intrusive thoughts
  3. Dr Sale expressed the opinion that the onset of clinical symptomatology was in the early eighties, and that it was probably triggered by the deaths of his parents. We observe that such an opinion is shared by other psychiatrists in this matter. We also observe that Dr Sale considers the clinical onset of the PTSD to be in 1969/1970, although he readily admits that such an opinion is one borne of educated speculation.
  4. We acknowledge the difficulties confronting Dr Sale in obtaining an accurate and detailed clinical history. We conclude that his analysis reflects such difficulties. We express concern that his preferred diagnosis of PTSD was initially made in the absence of necessary clinical data, while his confirmed diagnosis was made in the context of a less than accurate clinical history.
  5. In addressing the opinion of Dr Burges Watson in September 2006, we note the history detailed included:
  1. Prior to his second consultation, Dr Burges Watson spoke with Ms Kim, who he considered not to be a good witness, as she was very vague in many of her responses. Dr Burges Watson noted that Ms Kim detailed Mr Farnaby’s problems of “climbing inside himself” and “didn’t communicate” as commencing after he left the navy in 1979.
  2. Following his second consultation, Dr Burges Watson stated:
  1. In a further report dated 4 December 2006, Dr Burges-Watson, having spoken with Mr Farnaby’s sister, Ann, in England, noted that:
  1. In oral evidence, Dr Burges-Watson confirmed that the only objective evidence in this matter was a raised pulse rate, and that he was unable to find any evidence of any debilitating psychiatric disorder. Further, in response to questions asked in cross-examination, Dr Burges-Watson stated:
  1. In summary, we considered Dr Burges Watson’s clinical approach to be disciplined and objective. He sought other evidence from Ms Kim and Mr Farnaby’s sister. That evidence allowed him to have a better understanding of relevant matters bearing in mind that Mr Farnaby was an inconsistent and vague historian.
  2. We would also observe that Dr Burges Watson concluded that the onset of symptoms was in the early eighties, and associated with the deaths of his parents. This was a re-awakening of issues in Mr Farnaby associated with their departure for England in 1970. This is not, we note, a dissimilar thesis to that postulated by Dr Sale, with Dr Sale postulating a de-compensation of PTSD with a clinical onset in 1969/1970. We also note that Dr Burges-Watson has raised the possibility of a personality disorder but, in the absence of more detailed material about his formative years, his time at HMAS Leeuwin and the early years of his navy service, he believed the matter could not be taken further.
  3. In our opinion, Dr Burges Watson’s analysis of this matter was an unhurried, thorough and objective analysis of the available material.
  4. In considering the opinion of Professor Pridmore of 13 September 2004, we note the difficulties experienced by Professor Pridmore in gaining the co-operation of Mr Farnaby. We also note that Professor Pridmore records Mr Farnaby as being sexually abused each weekend for six months while at HMAS Leeuwin. He described Mr Farnaby’s current symptoms, and his history of alcohol usage.
  5. We observe that Professor Pridmore did not consider that Mr Farnaby satisfied the diagnostic criteria for PTSD, nominated in DSM-IV-TR, namely A1, A2, B. Professor Pridmore gave specific reasons for so finding. Professor Pridmore did not think Mr Farnaby totally incapacitated for work.
  6. In a further report dated 4 April 2005, Professor Pridmore again concluded that the flashbacks involving either the stabbing incident, or being in bed with a guy, did not satisfy criteria A for PTSD. Professor Pridmore undertook an analysis in the context of DSM-IV-TR. In relation to alcohol dependence/alcohol abuse, Professor Pridmore noted that Mr Farnaby denied all symptoms of either condition.
  7. Professor Pridmore noted that to make a diagnosis of a mental disorder, there must be symptoms of sufficient severity, present in sufficient numbers. Professor Pridmore, in noting Mr Farnaby’s symptoms, concluded that there were not symptoms present in sufficient number or severity to substantiate an Axis I diagnosis.
  8. In relation to the issue of personality disorder, Professor Pridmore stated that one would expect that if a true personality disorder was present, it would have presented much earlier. Professor Pridmore, in noting that Mr Farnaby appears to have manifested maladaptive traits and had not had a stable relationship or been in work for many years, concluded that, on such a basis, a personality disorder may possibly exist. But Professor Pridmore cautioned that with persistent heavy drinking, a deterioration in personality takes place, which may simulate personality disorder. In such circumstances, it would be necessary for Mr Farnaby to be totally free of alcohol for six months for his personality to be properly assessed.
  9. In answer to questions in cross-examination, Professor Pridmore confirmed his view that to satisfy criteria A1, the assessment must relate to a specific event, and not to the cumulative effect of many events. Further, he accepted that the incident of the attempted rape in the van could be construed as satisfying criteria A1 for the diagnosis of PTSD, but not criteria A2, as Mr Farnaby’s response was not one of intense fear, helplessness or horror.
  10. Professor Pridmore was of the opinion that all of Mr Farnaby’s symptoms and difficulties could be accounted for by his excessive alcohol consumption. Professor Pridmore concluded that Mr Farnaby has a difficult personality that has been influenced by his drinking, unemployment and the way he has spent his time over the years.
  11. We found the opinions of Professor Pridmore helpful. We observe a careful approach to the assessment of material necessary to satisfy the criteria for a diagnosis of PTSD, or indeed any psychiatric condition nominated in the DSM-IV-TR.

CONCLUSION

  1. We have found that Mr Farnaby was subjected to assaults, harassment and intimidation by fellow recruits at Leeuwin. He was also the victim of criminal sexual abuse by his sponsor.
  2. The issue for determination by the Tribunal however is whether the applicant suffered a mental injury or disease as a result of the treatment he was subjected to.
  3. Not everyone who is assaulted or raped suffers PTSD or some other mental condition. Dr Sale said in evidence that "in the order of" 50% of rape victims "stand a risk" of a PTSD. (Transcript page 201).

When giving evidence Dr Burges Watson was asked whether everybody who experiences a severe stressor such as sexual assault goes on to have a psychiatric illness. He answered as follows:

"No, not at all. In fact with - there's a recent paper, admittedly it refers to females and that's slightly different, but with childhood sexual abuse it is only with very serious sexual abuse which involves physical violence and threat and full penetration that psychiatric - subsequent psychiatric disorders are common. People with lesser sexual abuse don't develop psychiatric illness. Indeed a very high percentage of both males and females have experienced technically some form of sexual abuse in their childhood". (Transcript page 406).


  1. It was therefore necessary for us to carefully assess the evidence in order to determine, on the balance of probabilities, whether the applicant is suffering from any mental injury or disease as a result of the events at Leeuwin and the sexual abuse by his sponsor.
  2. The Tribunal has carefully considered the opinions of the three very experienced psychiatrists who gave evidence as well as all of the other material before us. From our examination of all of this material, we conclude that Mr Farnaby’s clinical symptoms commenced in the early 1980's, and have continued with varying degrees of intensity since. We consider that these symptoms arose as a consequence of the deaths of his parents, and a re-opening of issues resulting from the parents’ departure to England in 1970. These symptoms were superimposed on a person who has a difficult personality, associated with an excessive alcohol intake and substance abuse. We are unable to conclude to the standard required that Mr Farnaby satisfies the criteria for a diagnosis of any condition including alcohol abuse, alcohol dependence, personality disorder or PTSD, or indeed for any type of mental injury or disease.
  3. In reaching these conclusions, we have relied upon the opinions of the three psychiatrists but in particular, we find the opinion of Dr Burges Watson to be most persuasive. Dr Burges Watson summarised his opinion in the following terms:

"Well, the summation of my opinion is that he doesn't have a post-traumatic stress disorder. I can't say that he didn't experience what he experienced in Leeuwin, both the sexual and the physical abuse. But I don't think a post-traumatic stress disorder developed as a result of it. It may have affected his subsequent life, but I don't think he has any definable psychiatrist illness, disorder, at the present time". (Transcript page 405).


We are unable to accept Dr Sale’s opinion that there was a clinical onset of PTSD in 1969 without corroborative symptomatology at that time.

  1. Mr Farnaby has had some symptoms since the early 1980's. He did not report them until 2001/2002. At that time he was treated with anti-depressants. He no longer continues on that medication. We find that any continuing symptoms are associated with his difficult personality, coupled with excessive alcohol usage. We are not satisfied on the evidence before us that the applicant's symptoms are outside the bounds of normal mental functioning and behaviour. (See Comcare v Mooi (1996) 69 FCR 439 at page 444).
  2. The Tribunal finds that the applicant does not suffer from any mental injury arising out of or in the course of the applicant's employment in the Navy nor from any disease due to the nature of his employment in the Navy.

DECISION

  1. The Tribunal affirms the decision under review.

I certify that the 177 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President) and Dr J Campbell (Part-Time Member)


Signed: R Hunt (Administrative Assistant)


Date/s of Hearing 23 January 2006 and 2, 3, 4, 7, 8, 9, 10, 11 and 14 April 2008

Date of Decision 11 July 2008

Counsel for the Applicant Mr R Browne

Solicitor for the Applicant Ms C Gregg, Fitzgerald & Browne

Counsel for the Respondent Mr B Morgan

Solicitor for the Respondent Australian Government Solicitor


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