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Federal Court of Australia |
Last Updated: 3 February 2004
FEDERAL COURT OF AUSTRALIA
Brandon v Commonwealth of Australia [2004] FCA 20
MARK
JOHN BRANDON v COMMONWEALTH OF AUSTRALIA
NG 374 OF
1994
WHITLAM
J
30 JANUARY 2004
SYDNEY
ON REMITTAL FROM THE HIGH
COURT OF AUSTRALIA
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BETWEEN:
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MARK JOHN BRANDON
APPLICANT |
|
AND:
|
COMMONWEALTH OF AUSTRALIA
RESPONDENT |
|
DATE OF ORDER:
|
|
|
WHERE MADE:
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THE COURT ORDERS THAT:
1.
Judgment be entered for the respondent with
costs.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court Rules.
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
REASONS FOR JUDGMENT
1 This is an action against the respondent (‘the Commonwealth’) for damages in respect of personal injuries allegedly suffered during service in the Royal Australian Navy (‘the RAN’). The applicant, Mark John Brandon, served in the RAN from 1981 until 2002. His action relates to an incident on 22 October 1985.
2 I shall begin by attempting to unravel from the often confusing testimony and the mass of documentary evidence in this case what appear to be the significant milestones in the applicant’s life and service career or, at least, those that are not in dispute. The applicant was born on 1 June 1963 at Frankston in Victoria. He attended the local technical school, which he left at the end of the first term in Year 11 in order to take up an apprenticeship with a butcher. This position only lasted three months because the business failed. The applicant then worked as a shoe salesman and as a service mechanic for a shower screen manufacturer. He lived at home with his parents until he joined the RAN.
3 On 7 April 1981 the applicant enlisted in the RAN for a fixed period of six years. His basic training was at HMAS Cerberus, the RAN base at Westernport in Victoria, where he lived in barracks. It was noted in his medical records that the applicant had been motivated to join up ‘for a good career and a good future’ and that his grandfather and father were ‘both ex RAN (father a CPO) and uncle has just retired (WO at Cerberus)’. After recruit training the applicant was promoted to seaman on 27 June 1981. He completed his basic trade training in the marine technical propulsion category, and on 17 November 1981 he was posted for service aboard HMAS Stalwart.
4 Stalwart was an escort maintenance vessel based in Sydney. In April 1982, whilst serving on this ship, the applicant met Sharyn Marie Abedin. She was the mother of a boy called Nathanial born on 24 January 1982. Miss Abedin was nineteen at the time (having been born on 18 September 1962). She lived with her own mother at Bellambi, north of Wollongong, and the applicant visited them there whenever he was not on duty at weekends.
5 The applicant was promoted to able seaman. In September 1983 he was posted to Navy Headquarters in Canberra where he and Miss Abedin began living together. They continued to live together when the applicant was subsequently posted, first, to the shore establishment HMAS Lonsdale at Port Melbourne in April 1984 and, then, to Cerberus in September 1984. There he passed the command tests for promotion to leading seaman and phase 2 of the marine technical propulsion course. The applicant and Miss Abedin were married on 27 April 1985.
6 In June 1985 the applicant was again posted for service aboard Stalwart. His wife moved with him to married quarters in the Sydney suburb of Fairfield, from which the applicant commuted to work when his ship was in port. On 22 October 1985 there was an incident aboard the Stalwart, which is the subject of this action. I shall come back to this topic later on.
7 On 22 April 1986 the applicant signed forms, claiming compensation for hydrogen sulphide poisoning, headaches and dizziness and claiming medical treatment and pension for hydrogen sulphide poisoning, nervous condition and phobia arising out of the Stalwart incident. On 9 July 1986 a delegate of the Commissioner for Employees’ Compensation determined that the Department of Defence was liable to pay compensation to the applicant in respect of hydrogen sulphide poisoning. Notwithstanding these claims by the applicant, on 31 July 1986 he subscribed his signature to a declaration electing to re-engage in the RAN for a period of one year after 6 April 1987.
8 The Department of Veterans’ Affairs (‘DVA’) arranged to have the applicant examined by a medical officer on 28 November 1986. She, in turn, referred him for assessment by a psychiatrist and a neurophysician. The psychiatrist, J P Killalea, reported on 14 January 1987 his opinion that the applicant had a post traumatic stress reaction. On 9 February 1987 a delegate of the Repatriation Commission determined that the applicant was eligible for a pension in respect of his incapacity from hydrogen sulphide intoxication, traumatic stress reaction and migraine and assessed the rate of such pension at thirty per cent of the general rate.
9 On 31 May 1987 the applicant was promoted to leading seaman, and the next month he was posted to Cerberus as an instructor in marine engineering. There he signed on 10 July 1987 a declaration re-engaging in the RAN for a further period of three years after 6 April 1988. A daughter, Danielle, was born on 24 June 1988.
10 In February 1989 the applicant was seen by the medical officer at Cerberus, complaining of gastrointestinal pain and headaches. He was referred for investigation of the headaches to Dr Peter Bladin, a consultant neurologist. The applicant told Dr Bladin that his headaches dated from the incident on Stalwart. The applicant was scheduled to commence phase 3 of the marine technical propulsion course in July 1989, and he was worried about his memory and ability to concentrate. He expressed the belief that the hydrogen sulphide had affected his brain. Dr Bladin referred him for neuropsychological testing and also suggested that he see Dr R G Myers, a consultant psychiatrist.
11 On 23 February 1989 the applicant elected to transfer to open-ended enlistment with effect from 7 April 1991. However, as he had been posted to join the patrol boat HMAS Warrnambool on 27 March 1989, an interim medical survey of the applicant’s employment classification was arranged. Pending receipt of the neuropsychological and psychiatric assessments, the applicant was classified fit for shore duty anywhere, but unfit for sea going service, and his patrol boat posting was cancelled.
12 Formal testing was conducted on 3 March 1989 by Marie O’Shea, neuropsychologist. She and another neuropsychologist, Dr Michael Saling, reported their opinion that:
‘... neuropsychological function in this man is essentially within normal limits. There is a very mild concentration difficulty as well as a very mild planning difficulty and we gain the impression that these are more consistent with a post-traumatic stress disorder rather than neurogenic in origin. In particular there is no evidence of an axial memory disturbance.’
Dr Bladin concluded on the basis of his physical examination and interview that there was no evidence of organic brain damage underlying the applicant’s symptoms and noted that this conclusion was supported by the neuropsychological findings.
13 On 17 March 1989 the applicant was admitted as a day patient for interview by Dr Myers using amytal. Dr Myers reviewed him three times and reported on 26 May 1989 a marked improvement in all symptoms. On 22 June 1989 a further interim medical survey classified the applicant as fit for shore duty or for sea duty in a ship carrying a full-time medical officer.
14 The applicant was posted in July 1989 to HMAS Nirimba, the RAN training establishment at Quakers Hill west of Sydney, where he commenced his scheduled course.
15 In accordance with the recommendation of his most recent medical survey, the applicant was sent for review by a psychiatrist, Dr Peter Wurth, on 6 October 1989. Dr Wurth considered that, although he had a residual post traumatic stress disorder, he was fit for employment on a patrol boat. That recommendation was accepted by the medical board of survey, and the applicant was re-classified as category one, that is, fit for duty anywhere.
16 The applicant successfully completed his course at Nirimba, whereupon he was posted to Darwin for service aboard the patrol boat HMAS Wollongong in May 1990. He was promoted to petty officer on 30 April 1991. A second daughter, Brielle, was born on 10 November 1992.
17 In December 1993 the applicant was posted to HMAS Coonawarra, the naval base in Darwin, as a maintenance supervisor in the propulsion workshop. On 3 February 1994 he reported to the base medical officer, complaining of headaches, neck problems and tinea. The medical officer referred him to Ted Milliken, a psychologist in Darwin.
18 In April 1994 the applicant took four weeks recreation leave in order to concentrate on a therapeutic program devised by Mr Milliken. His performance caused Mr Milliken to think that ‘(his) problem could be a combination of a post traumatic stress disorder and brain impairment, the latter inhibiting the learning that should have ameliorated the former.’ At the end of May 1994 Mr Milliken carried out neuropsychological testing and concluded that the applicant had suffered not only post traumatic stress disorder, but also significant brain impairment, as a result of the incident on the Stalwart. Mr Milliken reported his opinion to the applicant’s solicitor.
19 On 31 May 1994 the applicant claimed an increase in his disability pension on account of brain damage. This action was also commenced on 20 June 1994 in Sydney, where the applicant’s solicitor arranged to have him assessed by a psychiatrist, Dr Robert Deming Wu, on 24 June 1994.
20 In the light of the view expressed by Mr Milliken, the base medical officer referred the applicant to a Darwin physician, Dr Dale Fisher, for review of his neurological symptoms. On 29 June 1994 he saw Dr Fisher, who arranged radiological investigations and blood tests and who also suggested that he see a specialist neurologist. The senior medical officer at the base then referred the applicant to Dr Duncan Wallace, a Sydney psychiatrist who was visiting Darwin on duty in the RAN Reserve, for an opinion on his condition. Dr Wallace saw him on 19 July 1994 and reported:
‘I have no doubt that he suffers from a Post Traumatic Stress Disorder as a result of his exposure to the HMAS STALWART gassing incident. The behaviour therapy and supportive psychotherapy he is receiving from Mr Milliken is appropriate and has helped his condition. PO Brandon has a good rapport with him and I endorse his continued similar management.
But Mr Milliken’s conclusion that he has organic brain damage from cerebral "anoxia" cannot be correct. Firstly, PO Brandon did not apparently lose consciousness during the incident so he could not have "anoxia", but may have indeed been hypoxia.
Neuropsychological assessment arranged by Dr Peter Bladin, Cons. Neurologist in March 1989 showed "no evidence of organic brain damage". So the impairment apparent in Mr Milliken’s recent testing could not be attributed to the 1986 incident.
But I am not suggesting that there is no impairment. I am saying that what is apparent on testing, is most likely to be due to his PTSD.’
Dr Wallace also said that the applicant was unfit for sea service. This advice was accepted in an interim medical survey, which noted that the applicant ‘believes his cognitive impairment has an organic aetiology and resents discussion to the contrary.’ He was re-classified as category seven, that is, fit for restricted duties under medical supervision.
21 The applicant saw Dr Fisher for review on 15 August 1994. The radiological investigations and blood test were all normal, and Dr Fisher arranged for him to see a neurologist, Dr John Willoughby, when he visited Darwin in September.
22 On 31 August 1994, after discussion with Mr Milliken, the base medical officer referred the applicant to a Darwin psychiatrist, Dr Len Marinovich. On 6 September 1994 Dr Marinovich arranged his admission to Darwin Private Hospital for acute depression. During this stay the applicant saw Dr Willoughby, who reported:
‘In my view, Mr Brandon’s disorder is a psychological one, specifically post-traumatic stress disorder. There are no unequivocal neurological signs pointing to brain damage and the slight impairment of memory and orientation in time may be attributed to lack of attention and lack of concentration rather than an underlying longterm disturbance. A long term disturbance is not suggested by the history either because it is only on brief occasions that Mr Brandon notices impaired problems with memory. More specifically, Mr Brandon’s symptoms at the time of the hydrogen sulphide exposure were trivial or absent, the first untoward symptoms occurred the next day when he had what sounds to me like a common migraine. Mr Brandon’s continuing headache disorder is likely to be common migraine, markedly exacerbated by the stress disorder although now not severe enough to require any specific management in its own right. Although sequelae after hydrogen sulphide exposure are recognised these occur only in individuals who have been dramatically exposed at the time and are usually found unconscious and require resuscitation.’
Dr Willoughby made no
plans to review the applicant. He was allowed home overnight on 19 September
and on the weekend of 24 and 25
September. He was discharged from hospital on
27 September 1994.
23 At the end of October 1994 the applicant went to Cerberus where, in early December 1994, he successfully completed phase 4 of the marine technical propulsion course. At the end of the course he resumed duties in Darwin. On 19 December 1994 a delegate of the Repatriation Commission declined to accept the applicant’s claim for brain damage. However, the delegate accepted that he had a post traumatic stress disorder and increased the rate of his pension to sixty per cent of the general rate.
24 On 29 February 1996 the applicant was promoted to chief petty officer and took up duty as the quality service manager at the base. In June 1996 he expressed a desire to return to sea, and he began day trips on patrol boats. He served for two weeks at a time on HMAS Cessnock in August and on HMAS Geelong in September. He was subsequently assessed by Mac Hoban, a psychologist in the RAN Reserve, and on 11 October 1996 he was re-classified as category one and fit for sea duty anywhere.
25 In mid-November 1996 the applicant was posted for duty as senior technical officer aboard the Geelong, which was based in Darwin. In early 1998 he was treated for abdominal pain and reflux problems culminating in three weeks sick leave in May 1998.
26 In August 1999 the applicant was posted to a staff job in Canberra dealing with training and safety issues in the marine engineering field. Late in 1999 he was diagnosed as suffering moderate sleep apnoea and he was provided with a CPAP (continuous positive airway pressure) machine for sleeping.
27 In September 1999 this action was fixed for hearing in March 2000. However the trial dates were vacated in February 2000 when the applicant amended his case. A new round of medical attendances commenced soon afterwards.
28 On 11 April 2000 the applicant was re-classified as unfit for sea duty. His need for a CPAP machine apparently meant that any future seagoing service would have to be on vessels larger than parol boats. Accordingly, Dr Julie Carr from the Department of Defence’s medical unit in the Canberra area asked one of the unit’s psychologists, Major Trish Vincent, for an assessment of the applicant’s fitness to serve on larger vessels. Major Vincent saw the applicant and gave him some relaxation exercises.
29 On 28 July 2000 the applicant quit work after an altercation with an officer. Dr Carr and Major Vincent arranged an appointment with a Canberra psychiatrist, Dr Brian White. The applicant saw Dr White for the first time on 29 August 2000. He remains under his care.
30 In September 2000 the applicant resumed work on a part-time basis. He gradually built up his attendance from half a day per week to two full days and one half-day per week. When Major Vincent was posted away from Canberra, the applicant began seeing Anne Macdonald, a consultant clinical psychologist, in November 2000. He remains under her care.
31 In December 2000 the applicant stopped work and never went back. This occurred following a domestic incident, in which the applicant assaulted Nathanial and after which he sought treatment in Duntroon Hospital. On 29 January 2001 the applicant commenced a ten-week therapy program as a day patient in the Hyson Green mental health unit of the Calvary Private Hospital. In the third week of the program he and his wife attended a Lifestyles Program together. On 15 February 2001 he signed a DVA form claiming that he suffered from depression that was service-related and seeking an increase in his disability pension. The day patient program concluded on 9 April 2001. On 11 April 2001 the applicant signed a further form claiming compensation and rehabilitation for post traumatic stress disorder and associated depression as a result of the Stalwart incident.
32 On 1 May 2001 Dr White admitted the applicant as an in-patient at Hyson Green on the recommendation of Ms Macdonald. He was discharged after twenty-one days.
33 On 4 June 2001 a delegate of the Repatriation Commission accepted his claim for depressive disorder and increased his disability pension to eighty per cent of the general rate. A final review of the applicant’s employment classification was instituted on 4 July 2001 with a view to a medical discharge from the RAN. In his accompanying statement, the applicant asked only that he not be retired before 26 November 2001 in order to meet his personal convenience. On 30 July 2001 a delegate of Comcare determined that the Commonwealth was liable to pay the applicant compensation for post traumatic stress disorder and associated depression.
34 On 8 November 2001 a review board noted that the applicant was unfit for sea service and decided that, as all sailors are to be fit for sea service, he should be discharged as medically unfit. He was subsequently discharged from the RAN on 17 February 2002.
35 The only direct evidence of the incident aboard Stalwart on 22 October 1985 came from the applicant. The vessel had sailed from Sydney two or three days beforehand and was near Darwin en route for Asia. In the early evening he responded to a pipe announcing casualties by going from the office used for his billet to the 2H (‘two hotel’) area at the other end of the vessel ‘to lend a hand’. This area was two decks below the main deck in the stern. When he arrived in that area, a lot of personnel were there. The applicant was directed to fetch a fan. He did so and then remained in the area for a number of hours assisting individuals as they were ‘brought up’ from the compartment below. The applicant recalls assisting, in turn, men named McLachlan, Purvis and Oliver. He had done his recruit training with McLachlan, had previously served on Stalwart with Purvis, and had also been on a course with Oliver. The sides of the vessel had been opened for ventilation. Bodies were placed near the openings, and he worked at times perilously close to the openings. The applicant had to restrain victims who were convulsing and gasping for air. The men appeared to be ‘decomposed’, by which, the applicant explained, he meant that their skin looked dehydrated. He could not recognize the faces of the men he knew. The applicant remained with each of the men for varying periods of time until they were taken to the top deck or evacuated. He helped with the resuscitation of a number of sailors who appeared seriously ill.
36 Next morning the captain of the vessel said that McLachlan had died. The applicant had a tingling in his fingers and arm, felt nauseous and had a headache. He was given an analgesic by the medics. Later he was given oxygen for thirty or forty minutes in the sick bay. The vessel arrived in Darwin on the afternoon of 23 October 1985. The applicant visited evacuated sailors in hospital and telephoned his wife in Sydney. On 24 October 1985 he was on duty when the Minister for Defence addressed the ship’s company and said that monitors to detect hydrogen sulphide gas leaks would be supplied before the ship continued its journey. After taking on crew and equipment, the vessel left Darwin after about a week. Whilst at sea, the applicant learned that other sailors involved in the incident had died. The Stalwart’s return from Asia was extended by a detour via Hobart to resupply the Antarctic mission in Macquarie Island, but the applicant thinks that the vessel was back in Sydney before Christmas 1985.
37 The Commonwealth eventually admitted that it breached its duty of care towards the sailors aboard Stalwart. It was, of course, quite shameful and disgraceful that the applicant and his colleagues should have been exposed to the prospect of harm in the way they were. The applicant has told his story of events on that fateful day over and over again. It is hardly surprising that the records of his accounts vary. However that may be, I am quite satisfied that on the afternoon and evening in question the applicant experienced a quite terrifying situation with men being brought from the bowels of the ship in an obviously critical condition and being evacuated in very trying conditions. It must have been a very distressing experience for a young sailor, especially in peacetime. The contest in this case has been about the effect of this incident on the applicant.
38 The applicant was in the witness box for three and a half days. His cross-examination commenced at mid-afternoon on the first day. The events of 22 October 1985 occupied only a small part of his evidence. A constantly recurring theme in the medical notes which have been received in evidence is the applicant’s resentment at having repeatedly to tell his story about the impact of those events upon his life. Those notes and other medical reports provided the basis for much of the cross-examination.
39 It is instructive to compare what the applicant said in 1986, when he first made claims in respect of the incident, (‘because we were given the forms on the ship’) with what he said in 2001, when he made his most recent statutory claims. In 1986, in a section of a lifestyle questionnaire dealing with personal relationships, the applicant indicated that the way he felt about other people was best described by the following statements:
• ‘I am often irritable with neighbours and family members.
• I do not mix socially outside my own home.
• There are some family members I prefer to stay away from.
• I have fewer chances to get out for entertainment with friends as much as I would like.
• I find it difficult to keep up a conversation with casual acquaintances.
• I find it difficult to keep up a conversation with family members.
• My circle of friends is getting smaller, and I don’t seem to be able to make new friends very easily.
• Some days I do not feel like mixing with or talking to people.
• I keep to myself and avoid other people.’
He added a further explanation that he was very short tempered, aggressive and moody. The applicant also stated that he was unable to use, or had problems using, public transport because he had ‘become very irritable and short tempered.’
40 In 2001, in the personal relationships section of a lifestyle questionnaire, the applicant ticked as applying to him (in the sense of how well he got on with other people) the following statements:
• ‘You don’t sleep well.
• You often get cranky from pain.
• You find it difficult to discuss your problems.
• You are moody and irritable most of the time and usually find it difficult to get on with people.
• You are withdrawn and find it difficult to get on with other people.
• You have to depend on other people a lot.
• Your life is completely ruined.’
He also stated that he could not go shopping unless his wife was with him.
41 In 1987 Dr Killalea noted the applicant’s ‘feelings of frustration, depression and anger about needless loss of life due to accidental leakage of gas which could have been prevented by maintenance during refit’. Dr Killalea reported to the DVA:
‘Veteran has noticed that he is a lot more short tempered since the [22/10/85] episode. Headaches occur when on board ship sometimes daily – Has only had 2 while off ship. Forgets things easily – can’t remember what he was told – While talking forgets what he was going to say. This makes him feel a fool.
Thinks he sees dust particles in air when he shuts he eyes and opens them while he has a headache. Headache last ages – takes 2 Panadol – has to lie down for a few hours. Mainly happens in afternoon occ. in morning. (this has been about 3/4 x) – Gets depressed – Feels this way all the time. Has never been suicidal – has not taken anything for it. Does not want to do anything when he is depressed. Has put on wt (6-7 kg). Appetite better. Sleeps well at home not on board. Has suffered tremor of L hand while using latter on a couple of occasions – also has had this happen to his leg. Libido depressed. This has caused problems in marriage. Has 4 yr old son. Wife works. Has hit wife a couple of times. After accident was drunk every night.
...
Wife gave account of husband not being himself since the accident – gets extremely bad tempered, has hit her, does not seem to know what he is doing and may try to rescue her – calls out names of men involved in accident etc.
This man has a Post Traumatic Stress Reaction & should be offered treatment if it interferes with his service life.’
42 In the questionnaire completed on 15 March 2001, the applicant stated that his condition had affected all aspects of his ‘social family and employment lifestyle’. He elaborated as follows:
‘Before my condition there was aways laughter in the house, nower days all there is, is silence and tention. Before my condition my children would run up to me, we would play and laugh. Now they approach with causion. We don’t play or laugh which causes me stress. Our eldest boy hardly talks to me anymore. If I’m in one room usually my family is in another, so as not to upset or stress me. This to causes me stress, as we have very poor relationship due to my mood swings. All my family are seeing consulors to help them cope and understand my condition.
My wife has taken over the running of the house from every aspect as I am unable to do these anymore. She has a job so she is here when the children are home and working when they are at school. This to causes me to become depressed, as we used to do everything together, like cooking, cleaning, laughing, playing socialising.
I don’t sleep well with nightmares and broken sleep, which also wakes my wife and family hence all are exhausted and errors of judgment are common which causes me to become extremely stressed and depressed.
I can only deal with the mundane matters at very low levels. I’m consistently strained, emotional, intellectual and physically. This has affected my social and employement life as I am constantly on my guard, people I use to socialise with have become frustrated with my mood swings and depression and have stopped ringing or coming around.
I am unable to work as I’m constantly stressed and under medical advice I have been placed on sick leave and I am now going to be medically discharged from the Navy which has causes me serve anxiety and depression both physically and mentally.’
43 The picture thus painted by the applicant is one of extreme emotional turmoil from soon after the incident in 1985. The applicant obviously picked up over the intervening years a good deal of information and knowledge about the features of post traumatic stress disorder. In particular, his exposure to the language used by psychologists means that he tends in a facile way to describe symptoms of recurrent distressing recollections of the Stalwart incident, such as flashbacks, and other symptoms, such as headaches, avoidance behaviour, diminished interest in activities, irritability, difficulty in sleeping, difficulty concentrating and hypervigilance. In his evidence the applicant did not distinguish between his ability to cope at home and at work. This is interesting because, whilst his evidence about his demeanour at home is generally corroborated by his wife, his evidence about his behaviour in the RAN is flatly contradicted. The applicant has recounted his symptoms over and over again to medical practitioners. It will be apparent from the statement reproduced in [42] above that the applicant is somewhat given to hyperbole. After all, there was only one very small child in the household back in 1985. The applicant gave no explanation of how it was that his symptoms led him to seek treatment in 1994 or how his life became so unbearably difficult in the second half of 2000 that he quit work for good.
44 The applicant’s case for damages has been presented on alternative scenarios, one of which is that his condition has precluded a career as an officer in the RAN that would otherwise have been available to him. There is a faint suggestion in his evidence that his failure in university entrance examinations at the end of 1980s was connected in some way with some kind of intellectual deficit he incurred as a result of his experiences in 1985 aboard Stalwart. This scenario is quite fanciful. The applicant acknowledges that it was always his intention to serve in the RAN for twenty years. He did so, and he reached the rank of chief petty officer.
45 The cross-examination of the applicant relied particularly on four pieces of evidence: the RAN records of his treatment for headaches before the Stalwart incident, the performance evaluation reports prepared by his supervisors throughout his service, an incident in the senior sailors’ mess at HMAS Harman in October 2000, and surveillance videotapes of the applicant taken in the month before trial. In addition, of course, the applicant was pursued over supposed inconsistencies or elaborations in what he was recorded as having told various treating health professionals and medico-legal examiners. (The applicant’s evidence about his consumption of alcohol was fairly confusing. However, the applicant seemed to accept that prior to the subject incident he occasionally ingested extraordinary amounts of alcohol. I think that ultimately the evidence showed that the applicant has engaged in occasional binge drinking before and after the Stalwart incident but that he has suffered no brain damage as a result of alcohol abuse.)
46 In his evidence in chief, the applicant said only that he suffered ‘normal’ headaches before the incident. The contents of what are now exhibits K and 11 were put to him. These show an extensive history of headaches before the subject incident. Not only was the applicant referred to an ophthalmologist for investigation years beforehand, but the record on 19 July 1986 of his complaint of ‘frontal headaches and aches behind his eyes’ was that he had suffered such a problem ‘on and off for several years’. The applicant said that he had no recollection of these attendances but, if that was what was recorded in his medical records, he accepted the accuracy of the note.
47 The performance evaluation reports raise serious obstacles to the acceptance of the applicant’s evidence. They consistently show improved performance after the subject incident. The narrative commentaries added by his superiors are extremely flattering. I shall give a few examples.
48 On 16 November 1987 the applicant’s divisional officer reported of his performance at Cerberus:
‘Leading Seaman Brandon has displayed outstanding resourcefulness and initiative over the reporting period. This has been particularly evident in his preparations for TOW [technical office writer] courses in which he has actively pursued new ideas, clarified instructional information and updated appropriately, and implemented in a most professional manner. Self motivated, Leading Seaman Brandon works diligently and effectively with minimal supervision. Leading Seaman Brandon has natural leadership qualities and utilises these to a high degree. Coupled with his organizational skills and drive, Leading Seaman Brandon’s performance has been well above that expected of a sailor of his rank.’
49 On 21 October 1994 (that is, soon after his discharge from hospital in Darwin) his divisional officer at Coonawarra reported:
Professional Knowledge
Petty Officer BRANDON by his industrious nature and exceptional technical abilities has ensured that the degree of professionalism practiced by his department is always of the highest standard. ...
Problem Solving
This ability was demonstrated during HMAS WARRNAMBOOL when he identified the cause of severe damage to the main engine/gearbox coupling as being caused by incorrect manufacturer assembly.
Organising and Planning
Petty Officer BRANDON has consistently displayed an extremely high standard of organisational and planning skills during a period dogged by severe staff shortages and unusually heavy workloads. During the reporting period he has been the only Senior Sailor in the Propulsion Workshop, which normally has a CPO and two PO’s.
...
Supervising
Petty officer BRANDON is highly respected by his peers and his leadership, management and technical abilities have been commented on favourably by other commands. He has implemented NQM principles fully in order to maintain high quality output from his team. He is about to commence the MTP4 course and it is felt that this, in conjunction with some further management experience, will enable him to fully utilise his capabilities to the RAN’s advantage.’
50 The narrative in his next report by a different divisional officer at Coonawarra for the period 1 December 1994 to 31 May 1995 was just as glowing:
‘Acceptance of Responsibility
PO Brandon has constantly displayed a high level of acceptance of responsibility. He has actively sought this responsibility, even during the most difficult of circumstances. On a number of occasions he has assumed the task of Trade Group Supervisor for the Propulsion workshop due to the supervisor being absent to leave and/or courses. During these periods he has carried out this responsibility in a professional manner and maintained a high level of efficiency in the department. On another specific occasion he lead a maintenance team loaned to FIMA Stirling for assistance. In this situation he was responsible for the rectification of a major defect on a W.A. based FCPB [Fremantle Class Patrol Boat]. This required co-ordination between FIMA Darwin, FIMA Stirling, NSC, W.A. civilian contractors and Sydney based machinery suppliers. This task was completed in minimum time and the ship return to operational service. As senior Petty Officer in the PTG he has continuously accepted the responsibility required of this position, which has assisted in maintaining the high level of expertise in the PTG and good customer satisfaction.
Professional Knowledge
As workshop supervisor for the PTG PO Brandon has consistently displayed an extremely high level of professional knowledge, achieving excellent results in his specialist FCPB stream. This has been an invaluable asset to the PTG in fault diagnoses and defect rectification which has resulted in shorter down time and higher availability of Darwin based FCPB’s. His specialist knowledge in FCPB engineering systems, in particular main engine and gear box exchangments and alignments is outstanding. ... In continuation training and maintenance of quality standards, PO Brandon has passed on this professional knowledge to he [sic] subordinates, ensuring a high level of engineering practice is carried out and maintained.’
51 On 18 March 1997 his commanding officer on Geelong wrote:
‘Since joining Geelong in November 1996 CPO Brandon has displayed excellent organisational and planning skills.
...
CPO Brandon is also an excellent supervisor. He ensures all personnel are well briefed on their task requirements and he closely monitors the level and quality of task performances. He maintains an excellent rapport with his shipmates and monitors them to achieve their best.’
52 In a subsequent report on 26 April 1998, the commanding officer of Geelong said:
‘CPO Brandon displays excellent supervisory skills. ... These skills are not only reserved for the Engineering Department. In an emergency situation revolving around FFV [foreign fishing vessel] operations last November CPO Brandon ... was inspirational to the ship’s company in very demanding conditions supervising the launching and recovery of boats and other upper deck evolutions.’
53 The applicant’s next commanding officer on Geelong reported on 6 August 1999:
‘During a recent grounding, the Ship immediately called Emergency Stations to ascertain the extent of damage. CPO Brandon took charge of coordinating the blanket search and providing Command with an indication of the extent of damage. His efficiency in completing this task was nothing short of brilliant.
...
CPO Brandon has been a pinnacle of strength in GEELONG and sets an excellent example to his senior, peers and subordinates.’
54 A commanding officer of a chief petty officer with three years seniority was required also to provide an assessment of the chief petty officer’s anticipated performance as a warrant officer. On 18 February 2000 his commanding officer at the Russell Offices in Canberra said that the applicant had exceptional professional qualities that fitted him for promotion. The applicant was described as a highly motivated self-starter. The commanding officer said that the applicant was a ‘naturally gregarious character’ with ‘the ability to communicate at all levels.’
55 The drift of these evaluations was put to the applicant together with specific examples. The applicant’s explanation of the discrepancies between his own account of his work performance and these contemporaneous assessments was unsatisfactory. He occasionally quibbled with the assessments, suggesting his superiors were not equipped to detect his shortcomings. The applicant suggested that ‘supervisors only see what they want to see’ and that his ‘paranoia’ may be confused with efficiency. All in all, his efforts to downplay these evaluations were entirely unconvincing. I was left with the impression that the applicant was not merely exaggerating difficulties at work, but that he deliberately painted a false picture of his own subjective assessment of his workplace performance. This is particularly significant when one comes to consider the lame reason he gave for downing tools completely in mid-2000, namely, that he could not handle the workload.
56 An incident in the senior sailors’ mess at Harman was also canvassed with the applicant. The applicant acknowledged that he was stood down as president of the mess by Harman’s commanding officer as a result of serious allegations made against him by one Lisa Wright. The applicant denied any assault upon Ms Wright and any sexual overture towards her. However, he was very coy in cross-examination about events at the mess on the night of Saturday, 14 October 2000. Subsequently evidence was given about that night by Ms Wright, her friend Megan Ward (whose birthday was being celebrated) and David Biddle (the bar steward). Ms Wright, Ms Ward and Mrs Brandon were all employed by the company which provided catering and contract cleaning services at Harman. The applicant was drunk, and there was obviously a lot of horseplay. I do not propose to make any findings about what happened that night at the mess. The events resulted in an inconclusive police investigation with which the applicant declined to cooperate. However, without going into the details of the allegations against the applicant, it is plain that he engaged in some fairly rambunctious behaviour that night. The applicant’s conduct on that night may or may not have betrayed something about his libido, but it was not that of a person avoiding social contact. This incident occurred, it must be recalled, at the time the applicant was attempting a graduated return to work. (There is also a reference to consequent marital discord in Major Vincent’s notes.) Once again, the applicant was unable to explain away behaviour quite inconsistent with his claimed symptoms.
57 The video surveillance was shown to the applicant. It was shot over five days around the applicant’s residence, shopping centres and a yacht club. There were hardly any great revelations in the exposures. Most of the time the applicant looked like any other overweight unemployed, middle-aged man moping around. However, he certainly did not appear distressed amongst the crowd at the opening of the shopping centre in the Queanbeyan suburb of Jerrabomberra or outside the Aldi supermarket in Queanbeyan on Maundy Thursday. The applicant also appeared to be undertaking the kind of chores around his house that he told Dr Carr he could not perform.
58 The applicant was also cross-examined about his service on the mess committee at Harman. He disputed that he was sociable. He recalled having a conversation with a former mess president, Warrant Officer George, about opportunities for promotion. The applicant said this discussion occurred in 2000, and he told Warrant Officer George that he could not handle the workload.
59 The applicant said that his income, combined with that of his wife, was about $6,000 per month. He had, therefore, no pressing need to look for employment. The applicant takes medication prescribed by Dr White and sees Ms Macdonald regularly. He hopes to get a job one day but does not think it will be in his trade. The applicant said he continues to have nightmares, sleeps only four hours a night, watches television and, does some cooking and cleaning, drives his daughter to school and, although he has had no flashbacks since finishing work, he has suicidal thoughts in pressure situations when his wife tells him to ‘snap out of it’.
60 The applicant also adduced evidence from his wife, her mother Joyce Abedin, Pelagia Kormany, Meredith Heigh and a former lodger Craig Windram. The Commonwealth called as witnesses a number of serving and former members of the RAN who knew the applicant during his service. I shall now summarize this evidence.
61 Mrs Brandon gave evidence that the applicant had greatly changed since the gassing incident on Stalwart. He had formerly been outgoing, friendly, charming, gentle and even tempered. He participated in sports and enjoyed the company of a lot of friends. When she spoke to the applicant by telephone the day after the incident, she noticed that his voice was unusually squeaky. When the applicant returned to Sydney at Christmas in 1985, she immediately noticed a change in his manner and deportment. The applicant used to stroll, but now he looked as if he was ‘on a mission’. He spoke abruptly and directly without the former gentleness in his voice. The applicant complained of headaches and consumed large quantities of analgesics. (She said that she did not know that he had complained of headaches before this incident.) The applicant refused to talk about what happened on the Stalwart. Whereas he had previously been a moderate drinker, he now consumed alcohol to the point where he occasionally lost consciousness.
62 In particular, Mrs Brandon said that she noticed the applicant’s sleep was badly disturbed. Initially this would occur two or three times a week. She noticed that the applicant would thrash around in bed, calling out names and instructions and apparently acting out the resuscitation of one of the victims. The nightmares might last fifteen minutes.
63 The applicant’s moods varied. He was not violent and abusive all the time. However, in cross-examination, Mrs Brandon said that the applicant assaulted her within a week of his return after the Stalwart incident and then he continued to do so every month thereafter. Although she suffered injuries to her face and mouth, she never sought medical or dental assistance.
64 Mrs Brandon did not know that in November 1987 the applicant’s supervisor described him as displaying outstanding resourcefulness and initiative and being self-motivated. She said that he did not present that way at home. The referral to Dr Bladin resulted from a conversation that Mrs Brandon initiated with the senior medical officer at Cerberus. She was alarmed because the applicant’s thrashing around in bed might harm their new-born daughter. After the day admission on 17 March 1989, he was relaxed for three days. But gradually the ‘vigilance’ started again and the headaches and violence also returned. When the applicant went on the course at Nirimba, Mrs Brandon stayed behind in Melbourne with the children. He would telephone every night saying that he was going to fail.
65 Mrs Brandon gave evidence of a most bizarre episode which occurred whilst the family was living in Darwin and after which the applicant saw Mr Milliken. Mrs Brandon sleeps with a bedside light on. She got up in the night to go to the bathroom. When she returned, she realized that the applicant was out of bed. A door had been pulled off the wardrobe, her husband was crouched over a pair of overalls gesticulating with his hands and crying out. Mrs Brandon was adamant that the applicant carried on in this fashion for about an hour but did not wake up. She was not in the room the whole time, as she went to put her eldest daughter (who had got up) back to bed. Mrs Brandon was closely cross-examined about this dramatic event, which she agreed far exceeded in duration any other disturbances she had observed in the applicant’s sleep.
66 Mrs Brandon was asked about assessments made of the applicant in his performance evaluation reports. She denied that in December 1993 he was presenting as someone who thrived on responsibility generally, and she said that in October 1994 a person displaying an extremely high standard of organisation and planning skills sounded like a different man to the applicant.
67 She and the applicant have separated four times. The first occasion was a week in July 1994. The applicant’s intensity, nightmares, headaches and vigilance got worse in 1994 at the time he was seeing Mr Milliken. His libido disappeared whilst he was on medication in Darwin. When the applicant was posted to Geelong, the violence against her escalated. His nightmares worsened. Towards the end of their time in Darwin, they commenced to sleep in different rooms. This arrangement has continued to the present time.
68 When the applicant was posted to Canberra, the family did not join him until the end of the school year in 1999. She noticed that his anger was now a ‘total eruption’. The violence, temper, headaches and memory were all worse. The applicant’s libido disappeared once more when he was medicated.
69 Mrs Brandon said that, if the applicant had his way, he would have lived in the senior sailors’ mess at Harman. She recalled being at the mess on the night of 14 October 2000, but she did not see her husband behave inappropriately towards Ms Wright. Mrs Brandon is aware that Ms Wright made an allegation against her husband as a result of which a police investigation was commenced and he was asked by the RAN to step down as president of the mess. She and her husband may have had a fight soon after the evening in question, but Mrs Brandon denied that she was jealous of Ms Wright. There was also an argument at the time of the applicant’s discharge from Hyson Green because he admitted having had relationships with other women when he was in Darwin.
70 Mrs Brandon now works as a supervisor for a company called Mastercare which provides contract cleaning services in the ACT and southern New South Wales. She earns an annual salary of $50,000 and is provided with a company car. Mrs Brandon has never discussed with her husband what sort of work he might do in the future.
71 Mrs Abedin said that when she first met the applicant she thought that he was very pleasant. After he and her daughter moved to Melbourne in 1984, she did not see them much until her daughter and children returned from Darwin to Canberra at the end of 1999. (Mrs Abedin did notice the applicant was moody when she visited them after Danielle’s birth in 1988.) Now Mrs Abedin stays with them in Canberra for a weekend at intervals varying between four and six weeks or a couple of months. The applicant is very uncommunicative and angry all the time. On one occasion she heard noises in the night and got up to see the applicant pacing up and down in the games room, muttering and throwing his hands up in the air. The applicant’s eyes were open, she did not speak to him, he ignored her, and she went back to bed after a minute.
72 Ms Kormany served at Cerberus as a course officer in the marine engineering school from January 1988 to January 1990. She was a sub-lieutenant. Ms Kormany noticed that, if the applicant forgot to do something, he would become angry and frustrated. In cross-examination, she agreed that the applicant performed his duties satisfactorily. Ms Kormany tutored the applicant in preparation for university entrance examinations, but he failed in mathematics.
73 Mrs Heigh was the wife of a sailor, with whom the applicant played soccer in 1983 at Cerberus. She met the applicant at that time and thought he was a happy, friendly sort of fellow. Mrs Heigh’s husband was serving on Stalwart at the time of the incident in 1985, but she had no contact with the applicant after the incident until 1993 when she and her husband moved to Darwin. She noticed then that the applicant’s demeanour was completely different. He was very aggressive, moody and solemn. Particularly Mrs Heigh observed that the applicant would lose his temper with Mrs Brandon. Once in 1994 she went to the Brandons’ house after being called by Mrs Brandon and saw the applicant hitting a cupboard door.
74 Mr Windram served with the applicant on the Wollongong from May 1990 to November 1991. Mr Windram gave evidence of having to show the applicant more than once how to perform a particular maintenance operation. (At the time Mr Windram was a qualified fitter and turner, but the applicant was not.) Mr Windram also boarded with the applicant and his wife in Darwin for about six months in 1992 and for about nine months between September 1994 and June 1995. Mr Windram noticed that they argued frequently and perhaps half a dozen times he was awoken by sounds coming from their bedroom. Mr Windram said that he had never seen the applicant physically assault Mrs Brandon, nor had he heard of such an assault. On shore leave in foreign ports, he observed the applicant to behave much like the other sailors.
75 I shall now deal with the evidence adduced by the Commonwealth from persons who served in the RAN with the applicant. Paul Clive Smith was the chief petty officer in charge of the engineering department aboard Wollongong from the middle of 1991 to the end of 1992 and, as such, the applicant’s immediate supervisor. The usual routine was six weeks at sea followed by a two-week maintenance period in Darwin. There were also refits and an occasional three month trip to foreign ports. At sea Mr Smith and the applicant lived in very close quarters in the senior sailors’ mess. They worked variable shifts when at sea, but their sleeping times would at the very least coincide for a few hours each day. Mr Smith was a light sleeper. The applicant slept soundly. He did not thrash around, sleepwalk or appear to suffer nightmares. Mr Smith also said that the applicant exhibited excellent initiative and resourcefulness in completing tasks. (This opinion was reflected in the three performance evaluation reports prepared by Mr Smith. These reports, in fact, showed the applicant being evaluated as having improved his results to very good. Mr Smith was not cross-examined at all about his assessments.)
76 Mr Smith said that he would have spent time ashore in foreign ports with the applicant. He said that the applicant was always very friendly and got on well with everyone on the vessel. The applicant did tell Mr Smith about the Stalwart incident but made no complaint about any difficulties as a result of that incident. The applicant’s performance was excellent at all times, including during cyclones when they were involved in the apprehension of foreign fishing vessels.
77 Mark Antony Kershaw was the coxswain and medic aboard the Wollongong from 1 March 1990 to 16 August 1993. He recalled the applicant joining the vessel at the end of May 1990. Mr Kershaw occupied the senior sailors’ mess with the applicant. He never observed the applicant having difficulty sleeping or sleepwalking. The applicant struck Mr Kershaw as a very conscientious and good sailor who was a ‘mover’, progressing well through the defence force. The applicant interacted well with the crew socially and conducted himself well ashore. Mr Kershaw was responsible for discipline and never had any reason to deal with the applicant.
78 Mr Kershaw was also responsible for dispensing medication, including non-prescription items such as Panadol. The applicant never approached him complaining of migraines or headaches of any type, and he never treated him for such a complaint. Mr Kershaw had heard the applicant mention the Stalwart incident in general conversation, but the applicant never made any complaint of ongoing problems occurring from that incident.
79 Stephen John English is a Lieutenant Commander in the RAN, who served at Coonawarra from 23 December 1994 until 28 July 1997. He was the divisional officer responsible for preparing the performance evaluation reports for the applicant’s service at the base up until the end of 1996. Lieutenant Commander English authored the extremely complimentary remarks in the narrative dealing with the applicant’s acceptance of authority and professional knowledge in May 1995 and with initiative in October 1995. Those comments were based on his own observations of the applicant’s work. Lieutenant Commander English said that the mess at the base was an all ranks’ mess, where all members mixed socially. The applicant was involved in the mess and the arrangement of social functions. Lieutenant Commander English cannot recall any problems with the applicant at the mess.
80 Warrant Officer Terrance Albert George and Chief Petty Officer Terrence Michael Newton were both living at Harman when the applicant stayed there in 1999 before his family came down from Darwin. Warrant Officer George was the warrant officer career manager. He knew of the applicant’s reputation as a good performer. Warrant Officer George said that in October or November 1999 (and not in 2000) he had a conversation in the senior sailors’ mess with Chief Petty Officer Newton and the applicant about undertaking a course with a view to promotion as a warrant officer. Both Warrant Officer George and Chief Petty Officer Newton recall the applicant saying that he was not interested in doing the course or in being promoted.
81 According to Warrant Officer George, he found the applicant to be a happy person. He saw the applicant with his family at a barbeque in late January or early February 2000, but he had less contact after the applicant moved into married quarters with his family. When Warrant Officer George was the president of the mess in early 2000, the applicant was the vice president, a position elected by mess members. The applicant deputised for him at the Anzac Day function in 2000. This required a lot of organisation. The mess was very crowded, and he did not notice that the crowd caused any difficulty for the applicant. Later, when Chief Petty Officer Newton was president, he also said that the applicant would stand in for him quite well. Chief Petty Officer Newton said that the applicant was as sociable as anyone else on the committee with rounds and raffles and mixed with the others.
82 Commander Gavin John Irwin was the applicant’s supervisor in the marine engineering policy job that he took up in Canberra in August 1999. Commander Irwin recalls their section of the workplace at the Russell Offices as an harmonious environment. He gave the applicant a very high performance evaluation in February 2000. In that report Commander Irwin said of the applicant:
‘Initiative
CPO Brandon has consistently displayed outstanding initiative in all aspects of his work. Despite no previous background or experience of working in the Canberra/headquarters area he has been able to continually identify and access appropriate information/personnel to produce the truly outstanding results. ...
Acceptance of Responsibility
CPO Brandon is quick to seek and take responsibility in all areas within his competence. He is a very forthright and energetic sailor who appears undaunted by the size of any task, tackling it with enthusiasm regardless of complexity. ...
Problem Solving
In his position within DEP(N) CPO Brandon has been faced with a wide variety of problems, some quite complex. He has demonstrated a superior ability to strip issues down to their essential elements and apply sound logic and professional judgment to produce excellent results. He has also shown tenacity in overcoming hurdles that would have stalled someone less committed. ...
Planning and Organising
CPO Brandon has applied himself to his tasking since joining DEP(N). When undertaking a job, be it delegated or self directed, he immediately evaluates the resources and information required. By superior planning he efficiently and consistently achieves excellent results and this has been exemplified in his ability to run with a number of different complex issues simultaneously. ...
Compliance with Orders and Acceptance of Authority
CPO Brandon has demonstrated the ability to display excellent compliance with orders whilst not being afraid to voice his own opinion. He can be relied upon to only speak his mind at an appropriate time, and his comments are always respectful and suited to the situation. In situations where he may hold a different opinion he nevertheless displays a consistently superior ability to acquiesce to authority in a cheerful manner.
Dress and Grooming
In a work environment that permits both civilian and uniform attire to be worn CPO Brandon is always immaculately turned out and sets an excellent example within the directorate. His dress, bearing and personal hygiene are consistently of an extremely high standard.’
In cross-examination, Commander Irwin was not asked a single question about these assessments.
83 I turn now to the medical evidence. Although the Commonwealth did not admit that the risk of injury to the applicant was foreseeable in the Stalwart incident, I am satisfied that it was foreseeable that a psychiatric injury may be suffered by a sailor, such as the applicant, in the circumstances of that incident. This case turns on the answer to the question whether the applicant, in fact, suffered such an injury, namely, post traumatic stress disorder.
84 Mr Milliken, Dr White and Ms Macdonald are the professionals involved in the applicant’s treatment who have given evidence. Mr Milliken’s involvement was, of course, a fair way in the past. Reports that he prepared back in 1994 and 1995 were received in evidence. At the end of his cross-examination it was clear that no weight could be given to Mr Milliken’s opinion. Mr Milliken took histories only from the applicant and his wife. He based his suspicion of brain damage upon the psychological tests he administered, yet he made no reference to the subsequent investigations I have earlier outlined. Mr Milliken agreed that the assessment of the applicant in his performance evaluation reports contradicted what he was told by the applicant. Quite fairly, Mr Milliken acknowledged that he would want to re-interview the applicant to be confident about any diagnosis.
85 The applicant first saw Dr White on 29 August 2000, and he prepared for different purposes a number of reports which are in evidence. In cross-examination, Dr White emphasized that his role in the applicant’s management was that of a clinician. He thought that the history of the pattern of symptoms was consistent with post traumatic stress disorder. Dr White accepted such a diagnosis at his initial interview. He discounted the importance of any history of trauma on the basis that the applicant was ‘not the first person from Stalwart who has been treated’.
86 Dr White considered that the applicant’s fitness for service had been under question since 1994, but said that he was concerned with the applicant’s current condition. Dr White said that prior assessments of the applicant’s work performance were not relevant. Dr White was apparently content to rely on what the applicant told his wife and him about difficulties with concentration and memory. Pressed about the supervisors’ reports of the applicant’s initiative and resourcefulness, Dr White petulantly replied that that was ‘their assessment’. Asked about the fact that shipmates had not noticed nightmares, Dr White made it clear that he relied on Mrs Brandon. Dr White fell back time and time again when confronted with information inconvenient to his diagnosis on the excuse that chronic post traumatic stress disorder fluctuates in severity. Dr White said that the fatigue from the symptoms eventually wears its sufferers down. Overactivity at work and extra hours were grasped at by the doctor as possible explanations for the applicant’s superior performance. Particular incidents, such as the applicant’s reported handling of the grounding aboard Geelong, were brushed aside.
87 The incident in the Harman mess was described by Dr White as a minor issue. Although he saw the applicant on 24 October 2000, he could not recall being told about that incident or about the applicant grabbing his wife. By 5 December 2000 Dr White did have a note that the applicant was back living in the senior sailors’ mess and separated from his wife, but such domestic discord was, according to Dr White, ongoing and attributable to problems with the applicant’s mood swings.
88 Dr White seemed to resent being cross-examined about the basis for his opinion. (I should say that, in my view, the cross-examination was entirely courteous.) Dr White made the point repeatedly that he was trying to contain and manage the applicant’s anxiety and depressive condition. The therapeutic value of the day patient program at Hyson Green must be open to doubts. Dr White defended the program but seemed to acknowledge that, after attending the program, the applicant now had difficulty coping at any level. Dr White once more expressed his view that the applicant’s effective functioning in the past had been more apparent than appropriate. Dr White said that patients often do get worse for a period of time after such a program.
89 It was put to Dr White that he would not expect the applicant to have borne up well in the witness box for three and a half days (as he, in fact, did), and Dr White agreed that he would not. Dr White said, however, that the applicant was observed during his hospital admission to have problems with concentration and mood swings. Further pressed about his opinion that the applicant was ‘permanently unfit’, Dr White carefully placed his opinion in the context of the traditional test for superannuation purposes, namely, unfit for employment ‘for which he is suited by education, training or experience’. Dr White volunteered that fitness standards in the defence forces were stricter ‘since the Timor deployment’. A serviceman had to be fit for combat, yet the applicant was on long-term psychotropic medication.
90 By the time of the trial Ms Macdonald had seen the applicant over forty times. When she took over counselling from Major Vincent, she accepted that the applicant suffered from post traumatic stress disorder. Indeed, Ms Macdonald never took a history of the supposed stressor until she came to prepare her first report for the applicant’s solicitors at the end of 2001. In that report Ms Macdonald reproduced the diagnostic criteria for that disorder and for a major depressive disorder with melancholic features. She was of the opinion he suffered both conditions. Ms Macdonald gave evidence for over a day, and yet it was never explained what precisely she did with the applicant during her one-hour sessions with him. She appears to have just listened to his complaints when it suited him. At other times Ms Macdonald apparently allowed the applicant to take calls on his mobile telephone and have animated long discussions with the builder of his new house. The one constant topic seems to have been management of the applicant’s anger. This involved disputes with Nathanial and with Mrs Brandon. At the end of a searching and thorough cross-examination, it was apparent that Ms Macdonald’s diagnosis depended on merely checking off the criteria against the applicant’s reported complaints. Ms Macdonald never saw any point from a clinical perspective in challenging or verifying anything he said. In particular, she had no interest in exploring the aetiology of his condition. Ms Macdonald was content to deal with the applicant as he presented. Nonetheless, she acknowledged that the applicant had not improved in Hyson Green or with her therapy. Ms Macdonald exhibited an attachment to her views about cognitive deficits in the applicant, which she was unprepared to test against other information, such as that in the performance reports. She failed to explain the likely utility or effectiveness of the future therapy program she proposed. I attach no weight to her diagnosis, as Ms Macdonald ultimately acknowledged that she had never critically considered that issue.
91 The applicant’s solicitors qualified a number of Sydney psychiatrists to give evidence in this case. Dr Wu is dead. A report based on his interview with the applicant back on 24 June 1994 is in evidence, but I give no weight to his opinion in view of the limited material to which Dr Wu had access. However, the applicant adduced evidence from three other psychiatrists.
92 The first he saw was Dr Robert Lewin, who examined the applicant on 2 December 1997. The applicant was at that time serving on Geelong and about to take recreation leave. Dr Lewin observed in his subsequent report that the applicant gave a ‘rather practised history’. Dr Lewin noted that the applicant did not admit to any period of separation from his wife, but that he was evidently ashamed of his behaviour towards her, including loss of temper and physical violence. Interestingly, Dr Lewin said that the applicant did not then describe morbid depressive symptoms. Speaking of the few months after the incident, Dr Lewin said that the applicant reported a range of emotional symptoms which included many of the typical post traumatic anxiety symptoms. Dr Lewin concluded, rather cautiously, that the applicant had developed ‘a marked emotional reaction to the Stalwart incident’. Dr Lewin said in his report that the question of prognosis was complex but, in saying so, it appears that he was obviously intrigued by the pattern of the applicant’s alcohol consumption.
93 In cross-examination, Dr Lewin frankly acknowledged that he did not get a history of nightmares or intrusive recall from the applicant. Dr Lewin agreed further that, if applying the formal diagnostic criteria, he could not have arrived at a diagnosis of post traumatic stress disorder in the applicant. Dr Lewin found no evidence of problems with concentration or objective evidence of a depressive state or anxiety state. The gist of much of the information in the performance evaluation reports was put to Dr Lewin, who agreed that in the light of such information he would have to interview the applicant once more before being confident of any diagnosis or aetiology for any condition.
94 Dr Wurth saw the applicant on 3 November 1999. (Although Dr Wurth had interviewed the applicant just over ten years beforehand for the purpose of assessing his fitness for sea service, he stressed that he did not see the applicant at any stage for treatment purposes.) Dr Wurth diagnosed the applicant as suffering from chronic post traumatic stress disorder. Unusually for a medico-legal examiner, he suggested that the applicant seek treatment of a supportive and maintenance nature from a psychologist or psychiatrist and he advised the applicant to obtains details of treatment programs for such a disorder from the Vietnam Veterans’ Association. Dr Wurth reported his view that the applicant remained fit for employment with the RAN, but that the applicant’s prospects for employment outside of the RAN would be very low as a result of fits of rage and forgetfulness.
95 In cross-examination, Dr Wurth said that he did not cross-check what he was told by the applicant because ‘I don’t see myself as an investigator or a detective’. Dr Wurth agreed that in 1999 the applicant described symptoms that were both new and more intense than he had described ten years earlier. Asked about headaches, Dr Wurth said that, if the applicant has suffered unexplained headaches for some years prior to the Stalwart incident, that was contrary to what he understood to be the situation. Dr Wurth did not know that the applicant suffered from sleep apnoea. Dr Wurth agreed that he would expect nightmares with external manifestations to be noticed in confined quarters on board a ship. Dr Wurth confirmed that he had never been provided with the information in the applicant’s performance evaluation reports. Asked about observations about the applicant in those reports, such as ‘outstanding resourcefulness and initiative’ and ‘self-motivated, diligent and effective’, Dr Wurth volunteered that throwing oneself into work can be a useful coping mechanism to forget something traumatic or distressing. Dr Wurth did agree that, if the history he had taken from the applicant of his sleep disturbances was correct, the laudatory comments in the reports would be ‘amazing’. Dr Wurth also agreed that, if the applicant had significant memory difficulties, that fact should be reflected in his capacity to undertake his work tasks. A fair sample of excerpts from the reports was put to Dr Wurth, who acknowledged that the descriptions of the applicant’s performance were not consistent with what he was told. Ultimately Dr Wurth said that in the light of that information he would need to re-interview the applicant before he could be confident of any diagnosis of his condition or arrive at any confident statement of its aetiology.
96 On 10 April 2000 Dr Jonathan Phillips saw the applicant for the purpose of a psychiatric assessment. Dr Phillips subsequently prepared a report for the applicant’s solicitors dated 11 May 2000. He provided a second report after he was furnished with the report of tests conducted on 10 April 2000 by a psychologist, Dr Alex Gilandas. Dr Phillips interviewed the applicant once more on 25 June 2001 at Canberra Airport and, after being provided with a report prepared for the Commonwealth by another psychiatrist, Dr Rod Milton, he usefully summarized in a letter dated 7 February 2002 how his view about the applicant had evolved up to that date:
‘At the time of preparing my initial report (10 May 2000) I identified that Mr Brandon had early symptoms consistent with exposure to hydrogen sulfide in the gassing incident on HMAS Stalwart (22 October 1985). His symptoms included severe headache, nausea and parasthesiae involving his fingers. I considered the client’s symptoms at the time had been amplified by anxiety, which was hardly unexpected in the circumstances. I noted that he had ongoing symptoms from the time of the gassing incident including headache, nausea, uncharacteristic irritability (with occasional aggression) and that he drank excessively. He suffered extension of his symptoms in the later years of the decade 1980-1990 with symptoms including memory loss, a tendency to interpret events in a paranoid manner, withdrawal from others and a full hand of depressive symptoms (marked dysphoric mood state, nihilistic ruminations, suicidal thoughts, survivor guilt, loss of libido, impaired motivation, general lethargy and weight increase).
Whilst I noted that a number of psychiatrists and psychologists considered Mr Brandon to suffer post traumatic stress disorder, I preferred the diagnosis of major depressive disorder. However, I did not rule out the diagnosis of post traumatic stress disorder. I added that Mr Brandon probably developed a comorbid alcohol abuse disorder and an alcohol dependence disorder, but that he managed to bring his drinking under control. I addressed the issue of brain damage, noting particularly psychometric evidence of cognitive decline. At the time I rejected a conclusion made elsewhere that Mr Brandon’s cognitive problems were caused by hydrogen sulfide and noted that the simple explanation was that cognitive impairment was secondary to his principal psychiatric disorder, be it post traumatic stress disorder or major depressive disorder. I concluded my diagnostic schema by noting that Mr Brandon had always been a psychologically vulnerable person, this setting the stage for the onset of a major psychiatric disorder.
My second report (20 June 2000) followed the reading of the psychometric report prepared by Dr Gilandas. The psychologist found Mr Brandon to have global impairment of memory function on the basis of a number of tests. He also noted, on the basis of tests, that Mr Brandon suffered severe depression and post traumatic stress disorder. I was not surprised by further objective evidence that Mr Brandon had cognitive impairment. In response to Dr Gilandas’ diagnosis of post traumatic stress disorder, I responded by noting that I set a particularly high threshold for diagnosis of the disorder and only reached the diagnosis in a manner where I do not offer prompts to the client which might be used in a self serving manner. I stated at the time that I did not rule out Mr Brandon suffering post traumatic stress disorder however.
I provided a further report (5 July 2001) after re-examining Mr Brandon and taking a history from his wife. It is important to note that Mrs Brandon observed her husband to undergo a sudden and unexpected change in personality function after his return from the tour of duty on HMAS Stalwart during which the gassing incident occurred. She noted further deterioration in the years since then. Taking all information available to me at that time, I concluded on the balance of probabilities that Mr Brandon was suffering from post traumatic stress disorder, rather than a major depressive disorder. I supported the variation in my diagnosis by highlighting the client’s range of symptoms including his anxious and anhedonic mood state, his continuing high level irritability, his withdrawal from others, his re-experiencing of traumatic material (nightmares, flashbacks), his excessive vigilance and preoccupation with matters of safety.
I addressed additionally Mr Brandon’s ongoing cognitive impairment in the context of all information then available to me, including the useful comments made by his wife. I opined that the client’s cognitive impairment would best be explained on the basis of past alcohol abuse and I noted additionally the close association between the various psychological disorders (anxiety, depressive disorder, post traumatic stress disorder) and cognitive impairment.
I do not have reason to change my opinion further, other than to expand on Mr Brandon’s chronic psychological vulnerability in light of Dr Milton’s report. I am now of the opinion that Mr Brandon does have relatively mild obsessional features within his personality, these being in accord with my comments regarding his psychological vulnerability. However, I reject Dr Milton’s opinion that obsessional personality features will explain Mr Brandon’s presentation overall.’
97 Dr Phillips was not able to give his evidence without interruption. Scheduling difficulties required him to attend court on three occasions, each of which was some days apart. This must have been inconvenient and annoying, yet Dr Phillips was a model expert witness. He never became an advocate and his answers were very carefully considered. Dr Phillips’s evidence was most useful.
98 Dr Phillips explained that he used an open-ended style of interview in order to avoid cuing a person. He said that there was a discrepancy between his two interviews of the applicant. The history of the symptoms at his first interview indicated depression. The applicant did not give Dr Phillips at that interview the spectrum of symptoms which would validate a diagnosis of post traumatic stress disorder. Dr Phillips said that, in reaching a diagnosis of a major depressive disorder, he did not mean to suggest that ‘on day one or two following the incident’ the applicant developed such a disorder, but merely that on his assessment the applicant had that disorder. At the second interview Dr Phillips was surprised by the significant change in what the applicant was saying of his symptoms and in the applicant’s presentation. Dr Phillips said that clinical scepticism was important and that he now regretted not seeking to inquire what brought about this significant change. Dr Phillips agreed that a person might pick up knowledge of the symptoms of post traumatic stress disorder in undergoing therapy, and the applicant did not tell him at the second interview of his attendance at the Hyson Green program. (Dr Phillips said that there was a ‘paradox’ here because education or health literacy was important in a therapeutic context, but it may be seen differently in a medico-legal context.)
99 It was put to Dr Phillips that, if the applicant had a history of headaches and of excessive alcohol consumption prior to the subject incident, he would have to be much more circumspect in relying on those matters in coming to the diagnosis that he did after the first interview, and he agreed. The second interview was conducted in the presence of Mrs Brandon. That was not ‘ideal’. The additions to the history, namely, recurrent nightmares and flashbacks, were ‘significant to the point that I changed my diagnosis’. In addition to those criteria, Dr Phillips said that he saw the applicant flinch every time there was an announcement at the airport and that he took into account that degree of vigilance and of reactivity. Dr Phillips agreed that he weighed those observations in the context of what the applicant had told him of his difficulties in crowds and shopping and that, if the applicant could undertake such activities without any agitation, then that would be inconsistent with what he was told. Dr Phillips said that he knew nothing of any alleged incident of sexual harassment in October 2000, of the applicant’s removal as president of the senior sailors’ mess or of a police investigation into such an incident and that, if such events had occurred, it would add to his concerns about the veracity of the applicant as a reliable reporter.
100 Dr Phillips explained that the symptoms of post traumatic stress disorder are ‘quite concrete’ and ‘tend to be rigid, relatively unmoving (and) pervasive’. Dr Phillips said that a person with such a disorder may have difficulty with appropriate responses and a tendency to fatigue. Dr Phillips thought that the witness box was a fairly stressful place for most witnesses and that a person with post traumatic stress disorder would be likely to have shown at least some symptoms of stress during three and a half days in the witness box. Dr Phillips said that, based on the history he took from the applicant, he would have expected the applicant to display obvious difficulties with his memory during such a time in the witness box. Dr Phillips said that, if the applicant did not do so (and he did not), then that would add to his clinical scepticism.
101 Mrs Brandon was interviewed by Dr Phillips by telephone after the airport interview. She did not mention recurrent nightmares or anything about sleepwalking which would be ‘spectacular’.
102 Dr Phillips said that he valued corroboration. Prior to the last day on which he gave evidence he looked at the applicant’s performance evaluations reports. Dr Phillips said that the discrepancy in terms of presentation between what he witnessed and was told on the one hand and the assessments in the reports on the other hand caused him concern. Dr Phillips did not seek to explain away the laudatory comments in those reports but frankly acknowledged the conflict between them and what he was told. There was a substantive difference. Dr Phillips agreed that before he would be confident of any diagnosis of the applicant, he would need to re-interview him and go over this contradictory information with him. Dr Phillips pointed out that he had said in his final report that the applicant provided one of the greatest medico-legal challenges.
103 Dr Gilandas prepared two reports for the applicant’s solicitors. In his first report Dr Gilandas said the results of tests he administered showed that the applicant suffered an impairment of memory. He also said that the applicant suffered post traumatic stress disorder. Dr Phillips, however, said that the symptoms described in Dr Gilandas’s report made it unlikely that the applicant suffered post traumatic stress disorder. In a subsequent report Dr Gilandas said that the applicant’s cognitive dysfunction reflected mild brain damage most probably due to alcohol abuse. In his evidence, Dr Gilandas accepted that the performance evaluation reports contradicted the conclusions he drew from the results of the tests he administered.
104 The Commonwealth tendered a number of reports by Dr Milton, who interviewed the applicant for three and three-quarter hours on 24 October 2001 and reviewed a number of reports and records relating to the applicant’s medical condition. Dr Milton also observed the applicant give evidence for two days in this case. Dr Milton was of the opinion that the applicant did not suffer from post traumatic stress disorder. He said:
‘It might be suggested that Mr Brandon had a kind of post-traumatic stress disorder which affected his life selectively. That is, that he was able to work satisfactorily but had a psychiatric disease throughout which interfered disastrously with his personal, family and social life.
One difficulty with such a hypothesis is its inherent complexity. If the hypothesis is accepted, then explanations are necessary to account for why the claimed disease had no significant effect on cognition, emotion and relationships at work, but markedly interfered with those same mental and emotional functions elsewhere. It is relevant to note that Mr Brandon’s occupation involved him living in close daily contact with his fellow workers for long periods at sea and thus there was even less distinction between home and work than usually applies, and hence the claimed mental and emotional problems listed above must have been apparent in both environments.’
Dr Milton concluded:
‘The combination of complaints of pain for no apparent reason, and psychosomatic disorders, including headaches and upper abdominal pain, are consistent with the presence of longstanding personality difficulties. However, throughout the interview Mr Brandon showed a marked tendency to see all the problems in his life in terms of the subject incident. Even so, and even though he used much of the jargon from the post-traumatic stress disorder culture, he volunteered few of the typical symptoms of post-traumatic stress disorder.’
105 In cross-examination, Dr Milton said that he did make a formal diagnosis of personality disorder in the applicant. He agreed that the mere presence of mildly obsessive traits would not be expected to produce, on their own, a pattern of irrational anger, symptoms of serious anxiety, acute depression or nightmares. Dr Milton also agreed that obsessive traits are a way of dealing with the world. Moreover, he agreed that an episode of acute depression could be secondary to ongoing post traumatic stress disorder.
106 Both sides had the applicant examined on 8 November 2001 by a physician specialising in occupational medicine. Dr Graham Hall reported to the applicant’s solicitors that their client ‘would have difficulties working with crowds, working in confined spaces and doing anything which required memory, patience or tolerance’. Professor Peter Hall examined the applicant for the Commonwealth. He was unable to find evidence of any physical pathology in the applicant. He noted that the applicant’s heart rate and breathing were normal and commented that an elevated heart rate and some breathing dysfunction would be expected in a person suffering from a significant anxiety condition. Professor Hall also noted that the applicant’s liver function tests were within normal limits.
107 I am quite satisfied that the performance evaluation reports provide accurate contemporaneous assessments of the applicant. The recollections of his shipmates must also be accepted, and I find that the discussion with Warrant Officer George took place in 1999. The applicant has invented or exaggerated symptoms. Of course, I accept that he was distressed at the time of the Stalwart incident and that he suffered minor physical discomfort in its immediate aftermath. The emotional problems he described in his home life may have been real enough over the years. If so, they had their origins elsewhere than in the subject incident. As Dr Milton points out, it would have been quite impossible for the applicant to compartmentalize his problems so that they were not exposed away from home. In any event, he did not say that. He said that he had problems at work. There is no corroboration for that claim, and I do not accept his evidence.
108 It is apparent from the medical records that the applicant has long had an obsession that he suffered brain damage as a result of his exposure to the hydrogen sulphide gas. He had been sustained and encouraged in that belief by Mrs Brandon. I am satisfied that the applicant has behaved badly at home towards Mrs Brandon and the children from time to time. It is clear enough that his admissions to hospital have coincided with such behaviour and that he and Mrs Brandon have separated at these times. Perhaps the applicant blames his behaviour on the Stalwart gas incident. I am reluctant to find that Mrs Brandon has invented her tales of the disturbances in the applicant’s sleep pattern, but I am bound to say her accounts were so confusing and inconsistent as to be unconvincing about the details of any such occasions. In particular, no matter what it was she observed her husband doing in relation to any garment or wardrobe in 1994, I do not accept that he was ever sleepwalking for any period of time. Any such episode would necessarily have been brought to the attention of the RAN medical staff for serious investigation.
109 The initial claims of the applicant in 1986 were made as a matter of routine. They resulted in a label of post traumatic stress being placed on his claimed condition but, whereas the applicant’s headaches were troubling to him and were as a consequence investigated soon enough after the accident, no treatment was sought in the same way for any supposed anxiety state. The medical officers in the RAN or employed by the RAN have been content to use the label, but they have generally been concerned with operational issues, such as whether the applicant was fit for service. That question of such fitness only came to a head when sea postings were imminent.
110 Since the applicant’s discharge he has remained under the care of Dr White, who made it clear that he was concerned with managing the applicant’s anxiety and depression. Dr White was not overly concerned about the aetiology of his condition. It is not to the point that post traumatic stress disorder had been accepted for purposes of the Veterans’ Entitlement Act 1986 and the Safety, Rehabilitation and Compensation Act 1988. I should repeat here, however, my observation of the applicant during his time in the witness box. He exhibited no difficulty with his memory, although he plainly found it inconvenient and embarrassing to have to recall incidents such as the night in the senior sailors’ mess at Harman, and he displayed remarkable stamina without any sign of distress. Indeed, making every allowance for possible medication, it was a controlled, but confident, performance by the applicant, especially in comparison with the subsequent, rather theatrical, presentation of Mrs Brandon.
111 The incomplete or inaccurate histories that the applicant gave to examining psychiatrists meant that each of Drs Lewin, Wurth and Phillips accepted that they had to reconsider the diagnosis of post traumatic stress disorder and the view that such a condition was caused by the Stalwart incident. The applicants bears the onus of establishing that he suffered a psychiatric injury as a result of his exposure to that undoubtedly significant stressor, and he has not discharged that burden on the balance of probabilities. There is simply no credible medical evidence to support his claim. Whatever emotional reactions, anxiety or anger he experiences at home, I am unconvinced that they are symptoms of such an injury. It is unnecessary, therefore, to consider the impact of these symptoms on his earning capacity. It was, however, an extraordinary feature of this case that the applicant’s treating doctors and psychologists considered it possible that his condition, especially his anxiety, might improve after this case was disposed of. Such optimism is generally expressed by doctors retained by insurance companies or employers, and I know of no sound basis for such a view in the case of a genuine psychiatric injury of some chronicity.
112 The applicant has failed to establish that he suffered psychiatric injury as a result of the admitted breach of duty of care. The Commonwealth is entitled to a verdict in the action with costs.
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I certify that the preceding one hundred and twelve (112) numbered
paragraphs are a true copy of the Reasons for Judgment herein of
the Honourable
Justice Whitlam.
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Associate:
Dated: 30 January 2004
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Counsel for the applicant:
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R E Williams QC with M L Brabazon (until 10 April 2002),
M L Brabazon (after 10 April 2002) |
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Solicitors for the applicant:
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Szekely & Associates
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Counsel for the respondent:
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C C Branson QC with P S Jones and Sabine Thode
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Solicitor for the respondent:
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Australian Government Solicitor
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Dates of hearing:
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3-5, 8-11, 15-19, 22-24, 26, 29-30 April, 3 and 8 May,
1 and 13 November 2002 |
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Date of judgment:
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30 January 2004
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2004/20.html