Ross and Comcare [2002] AATA 51 (29 January 2002)

Last Updated: 31 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 51

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2000/40

GENERAL ADMINISTRATIVE DIVISION )

Re Michael James Ross

Applicant

And Comcare

Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member & Dr P Staer, Member

Date 29 January 2002

Place Perth

Decision Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed

........(sgd R D Fayle).............

Senior Member

CATCHWORDS

WORKERS COMPENSATION - whether applicant travelling to obtain a medical certificate or medical treatment, for a physical or mental injury arising out of, or in the course of, the applicant's employment; whether the applicant suffered a mental injury or an aggravation thereof, arising out or, or in the course of his employment; issues of credibility.

Safety, Rehabilitation Act 1988 - ss4(1) definition of "injury"; 6(1)(b)(vii)(A) & (B); 14(3)

REASONS FOR DECISION

29 January 2002 Mr R D Fayle, Senior Member & Dr P Staer, Member

1. This is an application by Mr Michael James Ross ("the applicant") to review a decision by the Commonwealth Department of Veterans' Affairs, Military Compensation and Rehabilitation Service for Comcare ("the respondent"), made on 18 June 1998 and affirmed on 6 January 2000 by a delegate. The decision was that the applicant was not on duty or travelling to or from duty, or travelling to obtain a medical certificate or medical treatment for a compensable condition, at the time of the injury on 10 December 1996.

2. The applicant was represented by Mr Henry Christie, solicitor. Mr John Wallace of counsel represented the respondent. The following persons gave evidence for the applicant:

(i) The applicant;

(ii) Mrs Carol Penn;

(iii) Ms Samantha Luxford; and

(iv) Dr John Penman.

3. Evidence was given by the following persons for the respondent:

(i) Captain Angus Bestic; and

(ii) Major Christopher Miles.

Each gave their evidence by telephone.

4. The Tribunal had before it documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), sequentially identified as T1 to T129, which folios are numbered sequentially 1 to 272. The following exhibits were taken into evidence:

A1 Statement by Dr Peter Zariffa;

A2a Statement of Michael Ross dated 22 March 2001;

A2b Statement of Michael Ross dated 20 September 2001;

A3 Road map of relevant area;

A4 Statement of Samantha Jane Luxford signed 4 October 2001;

A5 Statement of Carol Penn signed 4 October 2001;

A6 Report of Dr John Penman dated 18 January 2001;

R1 Statement of Michael Ross dated 4 April 1997;

R2 Map of Holsworthy Barracks

R3 Application for leave statement dated 6 December 1995;

R4a WA Police Department Traffic Convictions;

R4b Queensland Government Traffic Record;

R5 Statement by Angus James Bestic of 7 February 2001, signed on 26 February 2001;

R6 Statement by Christopher Gerard Miles; and

R7 File of summonsed documents from Liverpool Health Services.

5. It is not in dispute that the applicant was admitted to the 1 Field Hospital, as a patient, on 1 November 1996 and discharged on 10 December 1996. That treatment was for depression. Also, it is not in disputed that on the night of 10 December 1996 the applicant, whilst riding his motor bike, had an accident which resulted in him becoming a paraplegic. At all material times the applicant was a member of the Defence Force attached to 4RAR (regiment) at Holsworthy in New South Wales. Also, that his quarters were located about 4 kms away, at the East Hills Barracks, where he was required to stay as a soldier of 4RAR. The applicant was discharged from the Defence Force on 21 December 1997 as medically unfit.

6. The issues are twofold:

* Did the depression (a mental injury) suffered by the applicant arise out of, or in the course of, the applicant's employment with the Defence Forces; or did the applicant suffer an aggravation of his depression arising out of, or in the course of, that employment; and

* Was the applicant, at the time of the accident on 10 December 1996, travelling to obtain a medical certificate for the purposes of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"); or for the purpose of receiving medical treatment for an injury (being a physical or mental injury arising out of, or in the course of, the applicant's employment with the Defence Force).

7. The relevant provisions of the Act are set out below for convenience:

Section 4 Interpretation

4(1) [Definitions] In this Act, unless the contrary intention appears:

injury means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.

6 Injury arising out of or in the course of employment

(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:

(a) as a result of an act of violence that would not have occurred but for the employee's employment or the performance by the employee of the duties or functions of his or her employment; or

(b) while the employee:

(i) was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment;

(ii) was travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment;

(iii) was travelling between the place where he or she normally resides and another place, being a place where he or she resides temporarily, as a matter of necessity or convenience, for the purposes of his or her employment;

(iv) was travelling between one of his or her places of work and another of his or her places of work;

(v) was travelling between his or her place of work or place of residence and a place of education for the purpose of attending that place in accordance with:

(A) a condition of his or her employment by the Commonwealth or a licensed corporation; or

(B) a request or direction of the Commonwealth or a licensed corporation;

or for the purpose of attending that place with the approval of the Commonwealth or the licensed corporation, as the case may be, unless he or she was so travelling while on leave without pay;

(vi) was at a place of education, except while on leave without pay, for a purpose referred to in subparagraph (v);

(vii) was travelling between his or her place of work or place of residence and any other place for the purpose of:

(A) obtaining a medical certificate for the purposes of this Act;

(B) receiving medical treatment for an injury;

(C) undergoing a rehabilitation program provided under this Act;

(D) receiving a payment of compensation under this Act;

(E) undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or

(F) receiving money due to the employee under the terms of his or her employment, being money that, under the terms of that employment or any agreement or arrangement between the employee and the Commonwealth or a licensed corporation, is available, or reasonably expected by the employee to be available, for collection at that place; or

(viii) was at a place for a purpose referred to in subparagraph (vii).

(1A) (not relevant)

(1B) (not relevant)

(2) Subparagraph (1)(b)(ii), (iii), (iv), (v) or (vii) does not apply where the travel:

(a) was by a route that substantially increased the risk of sustaining an injury when compared with a more direct route; or

(b) was interrupted in a way that substantially increased the risk of sustaining an injury.

(3) Subsection (1) does not apply where an employee sustains an injury:

(a) while at a place referred to in that subsection; or

(b) during an ordinary recess in his or her employment;

if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.

14 Compensation for injuries

(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.

The Evidence

Applicant's Army Record

8. The applicant was born on 1 April 1975 and first applied to join the Australian Army in 1991 but was prevented from doing so because of a then prevailing knee injury. He again applied to join the Army in June 1995 and after completing the medicals, enlisted on 4 September 1995. The applicant did not disclose his previous knee injury in his medical induction declaration (T48), although he did disclose that he had injured his left shoulder in February 1995. When asked about that omission by Mr Wallace, for the respondent, the applicant said he did not disclose it because the Army already knew about it. At the June 1995 medical examination the applicant made the following disclosures to the medical officer, that: he had injured his right shoulder 5 months previously but has since had full recovery; he then drank 10 cans (of beer) per week; smoked 6 to 10 cigarettes per day; and was concussed in 1995, was hospitalised over-night but made a full recovery (T31, p.79). In response to questions by Mr Wallace the applicant admitted that he did not disclose in direct response to questions, that he had previously applied for enlistment in the Defence Forces and that as a youth he had experimented with marijunana.

9. The T documents at T51, pages 139 to 142 contain a record of the applicant's attendances at the platoon's RAP for medical treatment from 3 October 1995 to 18 December 1995. These include attendance for treatment for shin pain arising from an injury sustained whilst on mess duty and ankle pain arising from running exercises. A radiological study carried out on 17 October 1995 revealed "no focal bone abnormality identified" but "increased uptake about the knee joints, ankle joints and small joints of both feet in keeping with post traumatic arthropathy/synovitis". On 18 December 1995 the applicant was restricted for three days to "no running, no prolonged walking, upper body PT only, may swim" (T55). On 17 January 1996 the applicant presented to the RAP with right shoulder, neck problems, the orderly noting that "Pt broke his shoulder (R) last July ... (R) clavical is still causing patient great discomfort and reducing his work capability". Physiotherapy was recommended (T56) and the applicant was restricted for three days to "no upper body PT/no pack carrying" (T57). As it happened, the applicant attended the RAP on 22 January 1996 with "minimum use right upper limb" and was on "restricted duty" for a further 15 days until 0900 on 5 February 1996.

10. On 5 February 1996 the applicant attended the RAP, the orderly recording that the applicant's condition was "a little worse with physio & Hydro!! Wants to go back into rehab prog b/c physio & hydro make his pain worse" (T61). That record shows attendances at the RAP for each of the next 4 days when on 9 February 1996, although reporting "still pain in (R) shoulder ... a lot better" (T62, p154). That record shows attendances for 12 February 1996 to 15 February 1996 inclusively and physiotherapy treatment on 16, 19-23 February 1996 . It would appear that during the latter period the applicant was performing normal duties but also having physio/hydrotherapy treatment. On 26 February 1996 the applicant was cleared to resume training as his shoulder had improved and he was no longer experiencing problems (T66, p159).

11. The next recorded attendance at the RAP was on 27 May 1996 for blisters on (R) heel when the applicant was restricted to "soft shoes only, no boots" for three days (T67). The blisters required dressings until 31 May 1996 (T68). On 3 June 1996 the applicant attended the RAP for "sore (R) hand, bruising on knuckles, some pain moving fingers, clenching fist, extension". Because he had not fully recovered from his blisters he was restricted to soft shoes for a further two days (T68).

12. On 20 June 1996 the applicant again presents to the RAP with "sore (R) shoulder, Pt was doing CFA and aggravated a previous injury ... is slightly inflamed and discoloured ... strained muscle ... restrictions, no upper body PT ..." (T70).

13. On 26 June 1996 the RAP reports "Mbr c/o pain in (L) ankle after rolling ankle during hard core yesterday ... swelling plus bruising pain on palpatation ROM 40%, refer MO, finished hard core with lateral sprain (L) ankle, ... restrictions and R/V 28.6.96 0900" (T70) and "no weight bearing lower limb" (T71). On 28 June 1996 the applicant attended the RAP as required and reported that "he feels he can perform all duties despite recent sprain (L) ankle"; classed FFFD [fully fit for duty] (T72).

14. On 17 July 1996 the RAP reports a review of the applicant's (L) ankle injury and notes that the applicant has refused an x-ray, doing all PT, not improving, running - pack work" and diagnosed "Achilles tendonitis (L) ankle sprain, recommending x-ray, physio, restrictions and analgesia" (T72). A subsequent x-ray on 19 July 1996 revealed "no bone, joint or soft tissue abnormality" (T73). On that day the UMO restricted the applicant's duties for 10 days to "no running, no jogging, no marching, no drill, no heavy lifting, no pack work, light duties. PT - cycle, swim, walk, gym work" (T74). The applicant was treated by a physiotherapist for this injury (T76 - T77) on 25 & 30 July, 1,5, 7 & 14 August 1996.

15. The applicant attended the RAP on 12 September 1996 for treatment to his (R) ankle which he said he rolled the previous night whilst on patrol (T80). No fracture was seen on an x-ray. The ankle was treated by strapping and the applicant was restricted to "light duties, no pack or marching, no patrol, 5 days" and prescribed "panadiene for pain" (T80).

16. The report at T78 records that the applicant "was assaulted on the 26 Sep 96, attended Liverpool Hospital, diag ./c rib? Lower left, x-rays taken but remained with hospital ...". The applicant was reviewed at the RAP on 27 September 1996 but "NFFD" [not fit for duty] and given one day sick leave (T81). That coincides with a medical certificate issued by the Liverpool Health Service on 27 September 1996 where he was treated for "closed head injury" and classed unfit for work from 27 September 1996 to 28 September 1996. (T82).

17. The applicant was admitted to 1 Field Hospital on 27 October 1996 and after tests, discharged the next day. He was redirected to Liverpool Hospital for x-rays. He complained that when "he was loading his pack onto his back this afternoon and experienced severe neck/(R) shoulder pain ... x-rays showed nil fracture of c-spine". He was referred back to 1 Field Hospital for further management. The clinical notes mention that the applicant "doesn't want anyone contacted" (T84).

18. T85 is a copy of a report by Dr Zariffa, the medical officer, who reported on 28 October 1996 that the applicant presented with "acute (R) cervical pain (onset whilst lifting heavy pack above head) - denies radiation of pain or neuro deficit ...". Dr Zariffa placed the applicant on 3 days sick leave then restrictions for a further day (T85).

19. The next document is an RAP report which date is unclear, although it is undoubtedly in 1996. It reports that "Pt presents after 'possibly being assaulted' last night - incident unclear to MBR. Nil allergies; Pt taking anti-inflammatory for neck and shoulder" (T86). It is noted that the documents obtained from Liverpool Hospital (Ex. R7) contain a report of 27 September 1996 when the applicant was "allegedly assaulted, Intoxicated >10+g ETOHL - at 3am had fight. Punched someone with (R) fist, then was kicked repeatedly in (L) side head + chest". A radiological report of the same date reports "no rib lesion seen. The lungs appear clear. Right elbow, forearm, wrist and hand - no bony nor joint lesion detected" A second radiological report of same date states "Skull: no vault lesion seen" (R1).

20. T87 is a medical in-confidence report relating to the alleged incident that gave rise to the applicant's admission as a patient at 1 Field Hospital on 1 November 1996. The report provides the history as "Pt had a binge last night went home unable to recall what happened over night - this morning woke up in bush 50km away from [ends abruptly]". Against the heading "O/E:" the ward MO reports "not unwell looking - young male P64 reg - emotionally distressed. etOH breath". The ward MO directed admission for observation (T87).

21. In the admission questionnaire the applicant said he smoked 10 cigarettes a day and drank a "carton a week". Then follows T89 to T99 inclusively, being a record of medical treatment and daily nursing notes maintained by 1 Field Hospital in relation to the applicant. Because of the applicant's evidence to be considered later in these reasons, in the opinion of the Tribunal, some of those notes should be mentioned in particular. The note of 1 November 1996, the day of admission (T91), states:

"1 Nov 96; Nursing 2130 hr. N/P admitted following being brought in by unit D O Mansers immediate Pte vague and ? unreliable. Apparently overindulged in alcohol intake and rest of night unknown ? assaulted. Woke up some way from lines ./c cord around neck. ? suicide attempt. On admission member withdrawn but responsive to questions. Smells of alcohol. Compliant ./c instructions (interacting readily ./c Pte Shaw). S/B MO admitted to ward for observation. Blood taken for [indecipherable]". (T91, p191)

22. On 7 November 1996 the applicant attended an appointment with a psychiatrist, Dr Taylor (T91, p193). As a result an instruction was given to commence anti-depressants and for the applicant to remain in hospital until next review. The ward note states "Dr Taylor diag - Major Depression". A note dated next day, signed by Dr Zariffa, states "agrees ./c impression of major depressive illness" (T91, p194).

23. In the notes provided to Dr Taylor (T129) by Dr Zariffa on referral, he records as history:

" ... he was found (in boxer shorts) with a rope around neck in bush with evidence of blow to back of head, and brought to hospital thereafter: he had no recollection of events, that recalled going to bed after drinking binge. It was at hospital that I noticed his dysphoric mood and inappropriate non-verbal interactions, and further questioning revealed that he has, for ~6 mths, had poor sleep habits, felt a 'feeling of do[om] without clear precipitant, and had suicidal thoughts on numerous occasions. As a result there has been abuse of ETOH which has caused administrative problems (incl. charges for AWOL). There is no clear indication that an organic illness has caused his dythmia, and an unsettled family background (social network in WA) [comment suppressed pursuant to s35(2) Administrative Appeals Tribunal Act 1975 order]... There is no current drug use, although he reports experimentation in adolescence (evidence of psychotic illness at that time). He smokes 10-20/day, but his general health is otherwise good." (T129)

24. In the Tribunal's opinion the consulting notes made by Dr Taylor show that the applicant came from a difficult family background. However, it was not until three or four months prior to the consultation on 7 November 1996 that he reports any history of "sad mood, irritability, sleep disturbance (middle insomnia) ... view of self negative, view of future pessimistic, mood - non-reactive". Dr Taylor identifies the stressors as "lack of social support; alcohol intake; neck pain". (T129, p.269) On 21 November 1996, Dr Taylor again saw the applicant. That report indicates improvement but notes the applicant's dislike of being posted to Sydney (from basic training at Kapuka). "Would rather be with his mates in 1RAR based in Townsville". (T129, p270. That note is consistent with the applicant's evidence in this regard.

25. It is the Tribunal's opinion that the nursing and medical notes relating to the applicant during his stay in 1 Field Hospital indicate general compliance and cooperation by the applicant with hospital staff. He kept to himself by and large except that once when accompanied by Sapper Molloy to visit Liverpool on day release he did not follow instructions. That incident is referred to in the applicant's evidence below.

26. On 28 November 1996 the ward notes include the following:

"28/11/96 N/E 1020 hr RE FUTURE C/L

Received phone call from distressed sister Samantha [phone numbers noted] who stated she was currently looking after PTE Ross's mother ... and could not look after both of them if Pte Ross was sent back home on C/L this weekend. She stated that ... when Pte Ross has been present [with his mother] they both become severely depressed compounding each others condition. She stated she could not cope looking after them together." (T91, p.203)

27. Dr Zariffa again referred the applicant to Dr Taylor on 28 November 1996. Dr Taylor reports improved feeling but "wonders whether he can 'handle going back to the unit'. Saw some members of the unit last night and 'they shrugged me off.' Worries that he was told some people at his unit want to bash him up. Discussed this - his responses of threatened. Recommended / he returns to his unit at this stage & to return to 1 FD hospital if he is threatened / assaulted / report to appropriate authorities" (T129, p.271)

28. On 29 November 1996 Dr Zariffa noted that Dr Taylor had commented "marked deterioration in mood with news of return to 4RAR: nightmares +++ last pn -> disordered sleep and poor appetite" (T91, p204). On 5 December 1996 the ward note records "possible discharge tomorrow" (T91, p.208). The applicant was not discharged on 6 November 1996 despite the ward notes for that day indicating "Pt has voiced nil complaints or concerns. Pt is in high spirits being independent/self caring" (T91, p208). And later that day the note states: "Quiet day. Nil complaints or suggestions of inflicting personal harm on himself". (T91, p.209)

29. On 7 December 1996 the ward note states:

7 Dec 96 1420

Pte Ross & Spr Molloy approached me @ 1100 requesting local leave. D/W Dr Zariffa - agreed to 2 hrs local leave in Ingleburn to 'get some food, some cigarettes, return some videos and have a look around'. At 1245 I received a call from Spr Molloy stating he and Pte Ross had decided they needed 'time out' & had decided to watch a movie at Westfield Liverpool. At 1405, Pte Ross called back to say Spr Molloy had coerced him into going to the Arch Bar to play pool prior to returning 1 Fd Hospital. I believe I heard Spr Molloy coaching Pte Ross whilst he was on the phone, despite Pte Ross stating Spr Molloy was in the toilet. I told both members to wait outside for duty driver and Pte Goodwin to pick them up.

ADDIT 1500

Phone call from Pte Goodwin. The members were not located at the address given despite a search in the premises and despite a 25 min wait.

7 Dec 96 Nursing 2030 hrs. Settled into ward after being accompanied by ambulance members (followed Spr Molloy and his escort of police x 2!!) Mbr very remorseful and distressed that he had to '[indecipherable] over Moloy' in case he did something stupid'. Member had injured (R) hand 4^th knuckle ? # xray [indecipherable] MO notified. Appetite good. Spirits improved." [Signed by a different staff member to the first two notes of 7 December 1996, above] (T91, p209)

30. On 9 November 1996 Dr Zariffa reported that the applicant was "dysphoric & remorseful re weekend's events, though seemingly had gained some insight into aberrant behaviour and poor impulse control. Despite regrets and dysphoria has no recurrent suicidal ideation. Continues on Moclobemide". Dr Zariffa then states:

"Plan: - suggest period of leave with family in WA on continuing medications; consider [referring to] consultant (?prior to D/C or on return).

* counselling at length today, esp w.r.t assertive behaviour and self-discipline. Supportive counselling given member's deflated mood.

* x-ray today: consider D/C arrangements tomorrow. [Signed by Dr Zariffa] (T91, p210)

31. Dr Zariffa noted on 10 December 1996:

"... gradual improvement in ensuing weeks, and no R/V Dr Taylor 25/11/96, moclobemide increased to 600mg/d ... in-patient care maintained due to threats of violence from colleagues on Pte Ross' return to unit. After repeated counselling, member returned to unit on 10/12/96; - continue [medication]; - sick leave 4 days: - MEMBER'S FUNCTIONAL CAPACITY WOULD BENEFIT FROM POSTING CLOSER TO SUPPORT NETWORK." [Signed Dr Zariffa, 10/12/96] (T129, p.272)

Evidence - Applicant

32. In addition to his oral evidence at the hearing the applicant provided two statements of evidence, exhibits A2a and A2b and the respondent submitted a further statement of evidence by the applicant, exhibit R1.

33. The applicant was born on 1 April 1975 in Queensland and moved to Western Australia in 1984. He completed his schooling in 1990 at age 15. He first attempted enlistment in the Army in 1991 but was not accepted because of a knee injury which he said he sustained in a trail bike accident. He then worked as a trades assistant. He reapplied to join the Army in June 1995 (T48). The applicant said in answer to questions put to him by Mr Wallace that he did not disclose the fact that he had been rejected in 1991. He said that when he mentioned it at the medical he was told he did not have to disclose it because it was not a serious injury and his knee had fully recovered. He agreed with Mr Wallace that his answer to the question about prior use of marijuana was wrong.

34. He was first posted to Kapooka in New South Wales for initial training. He then moved to Singleton to complete initial employment training before being posted to a regiment. He took six months to complete the initial employment training instead of the normal three months because he lost time due to injuries to his left ankle and shoulder. The ankle injury occurred whilst on a route march during the "hard core" training at Singleton. He said that whilst at Kapooka and Singleton he made good friends with a number of fellows who enlisted at the same time. It was his wish to be posted to 1RAR in Townsville with them but he was posted to 4RAR at Holsworthy, in New South Wales whilst they all went to 1RAR. He told the Tribunal that this was a disappointment especially as when posted to 4RAR he found it very difficult to make friends because those soldiers already there had established friendships. He said he felt lonely at Holsworthy. His evidence was that his feeling of loneliness was compounded over time because he learnt that he was being regarded as a malingerer. He said a fellow private assaulted him telling him to show some back bone and stop being a malingerer. He also said that the OC told him to start being a warrior and to show some back bone and he tore up the chit (for light duties) because of an ankle injury at the time.

35. The applicant said that 4RAR went on an exercise to Townsville and after about 3 or 4 weeks on this exercise he again injured his ankle but this time it was the right ankle. He was put on light duties for the next day when the exercise finished and he returned to Holsworthy. He continued on light duties there because his ankle was black down one side (and painful). He thinks he was on light duties this time for about seven days during which time he said his fellow soldiers continued to give him a hard time and once when on a bus a soldier "rammed my head up against the wall with his hand around my throat" (tr.p17). This, he said was an unprovoked attack. The applicant said that when he spoke to the officer about the incident he was told "to keep his head down" (tr. p17). The applicant also said that when he came off light duties he found it difficult to keep up with the group on the 10km jog each morning so the corporal asked for him to be excluded from the group and he was made to do his PT with the orderly.

36. The applicant also told the Tribunal of an incident in September 1996 when he was assaulted outside a nightclub. He said he recognised two of his assailants as fellow soldiers from 4RAR but he did not know them. This incident resulted in the applicant losing consciousness and being taken by ambulance to Liverpool Hospital. He was x-rayed but there were no fractures although he suffered bruising about his ribs. He returned to 4RAR the next day. The applicant said that neither he nor the soldier who accompanied him to the night club were prepared to identify his assailants when asked to do so by the commanding officer. He believed that to identify the assailants would only have exacerbated the situation and turned the whole battalion against him and "you would have to leave the State" (tr. p19).

37. In October 1996 the applicant was transported out from an exercise in Merlya State Forest because he had fallen and injured his neck. He was taken to Liverpool Hospital for x-rays and then to 1 Field Hospital for an overnight stay. Apparently no fractures were detected and he was prescribed a soft collar and analgesic cream for his neck. He said he was not happy about this because he expected "the other boys were giving me a hard time for having a sore ankle ... they're going to [physical] me with a soft collar on ... that's ... just not going to be really good sort of thing to have" (tr. p20). He said that he did get a hard time when he returned to the East Hills barracks and there were more accusations of being a malingerer.

38. The applicant described the incident that led to his being admitted to 1 Field Hospital on 1 November 1996 in these terms:

MR CHRISTIE: .. And the records show you were in hospital on 1 November. What led up to that?---I went into town because the - my company had come back from the exercise [at Merlya State Forest] and the boys had given me a hard time about it and then I went and seen Private Sneddon and then we went into town together.

Who was Private Sneddon?---He was a mate of mine that was in one of the other sections.

Right?---And we went into town together and then ---

When you say "into town", where?---Into Liverpool.

Into Liverpool, right?---Yeah, went into Liverpool and we had a few drinks in there and that but my neck was playing up so I come back on my own while they were still in there.

Where did you go when you were in there, do you recall?---When I - in Liverpool?

Yes?---Went to Alexander's.

And what is that?---That's just a nightclub in Liverpool.

Right. Anyway you came home from that?---Yeah, I come home and I was sitting out the front of my barracks' room just like eating a bag of chips and drinking a Coke and I spoke to Lance Corporal Hewitt and Private Sweet, they were the last - and then I remember going up to my room and then I woke up the next morning in the bush with a hootchie cord around my neck.

What do you mean by a "Hootchie cord"?---It's like really strong nylon cord.

Right. And what sort of length was it?---And it would have been about a metre long or so.

Right. And what did you do in relation to that?---Well, I walked back over to - which seemed like hours back to the - until I - I didn't even know where I was to start with I was just in the middle of the bush. Then I walked back and then I finally hit the road the East Hills Barracks is on. I went back to my barrack room and then I realised that I was like AWOL because it was an hour and a half I was supposed to have reported. I cut the Hoochie cord off my neck, I've got a key to get into my room and then I packed up my stuff and went to Sydney Airport.

What did you do at Sydney Airport?---Actually I was contemplating what I should - you know, what I should do. And I thought: gees, running wouldn't be a very good option I'd be in more trouble running than what - anything else. So I ended up ringing up 4RAR and speaking to the OC of my company.

Who was?---I can't remember his name at this time.

Right?---I spoke to him and he sent the duty guy over to come and pick me up.

Right. Did they pick you up from Sydney Airport?---Yeah.

And then what happened to you? Where did you go?---Well, I went back to 4RAR and I was just in a really - I don't know, distressed frame of mind or whatever and that's where Lieutenant Bestic was and he phoned up the RSM and the RSM told Lieutenant Bestic to admit to 1 Field Hospital." (tr. p21-22)

39. Mr Wallace cross-examined the applicant on this evidence. He asked the applicant what was his understanding as to why he was admitted to 1 Field Hospital on 1 November 1996. The following exchange occurred:

MR WALLACE: Well, your own words were these "Personal problems". So did you have some understanding as to why you were being admitted. Otherwise you would have said I don't know?---Well, I knew because I was AWOL and that.

Let's deal with the argument. Your evidence today was that you had some drinks in Liverpool, went back to the barracks and then found yourself out in the bush with a rope around your neck. Then you managed - how were you dressed?---Just in my boxer shorts.

Boxer shorts. And how far away from the barracks were you?---I have no idea. I have no idea at all.

Is that because you were just too drunk to know?---No, it's because I didn't know where I was. They don't have street signs in the bush.

Well, where did you come back out on to the main road from? How far from East Hills Lines?---I don't know. I'd been walking for about - I don't know. I really don't know. I could only guess.

You're only making it up, aren't you?---No.

The fact of the matter was; I want to suggest to you this is what more than likely was the case. You went back to the barracks. You kept drinking. You packed up, took off to the airport and kept drinking. At Mascot you thought better of it, despite being drunk, and someone had to go and get you at Mascot and bring you to Lieutenant ...?---It's a nice little fairytale but it's not true.

Well, you say that's a fairytale. Don't you believe that's a bit more plausible than this allegation---?---No.

---on your part that you found yourself out in the bush with a rope tied around your neck, in your boxer shorts and whilst in your boxer shorts, you walked back with the rope still around your neck, because you gave evidence you took it off when you got back this morning. Do you think that's plausible that anyone would believe that?---I believe that more than your little concoction. (Tr. p63)

40. Pages 64 and 65 of the transcript record an exchange between Mr Wallace and the applicant. In the opinion of the Tribunal this exchange satisfies it that on the night before the applicant's alleged bush incident referred to above he had been drinking heavily. It is more than likely that the applicant's drinking that evening lasted to past midnight. The Tribunal is not impressed with the applicant's evidence about his waking up in the bush with the cord around his neck and then finding his way back to the barracks the following morning (that is, on 1 November 1996). In the Tribunal's opinion, on the balance of probabilities, a more likely explanation is that the applicant fell asleep after consuming a considerable amount of alcohol, woke up after he was due to report and headed for Sydney Airport (Mascot) with the intention of going to Perth. The Tribunal finds that several aspects of the evidence before it support this as a reasonable hypothesis. In summary these are: (i) the applicant did not impress the Tribunal as a truthful witness; (ii) the applicant's history of alcohol use as evidenced is such that he had an inclination to overindulge when given an opportunity; when the applicant was admitted to 1 Field Hospital on 1 November 1996 the record indicates alcohol on his breath (T87); and the ward nursing note, made at 21.30 hours states, "smells of alcohol" (T91). These facts do not reconcile with the applicant's version of the incident that he had returned early the previous evening from Liverpool, ate some chips and drank a Coke before retiring to his room. It is further noted that the applicant does not believe anyone saw him return to barracks, as he said he did, in the morning of 1 November 1996. This is despite him being clad only in boxer shorts, with a rope around his neck and, on his evidence, arriving there one and a half hours after he was due to report (at 0730 hours -see Ex. R5).

41. The next relevant incident relates to the day on which the applicant was released from 1 Field Hospital and returned to barracks. A significant matter in this regard, in the Tribunal's opinion, concerns the "chit" issued by Dr Zariffa granting the applicant four days sick leave. T129, page 272 is an Inpatient Record Summary completed by Dr Zariffa and signed on 10 December 1996. It states, inter alia, "After repeated counselling member returned to unit on 10/12/96: ... sick leave 4 days ...suggest fortnight's leave /c family in WA ...". The "chit" was not produced in evidence. The applicant said that he had it, handed it to Lieutenant Besic on return to Holsworthy, who passed it onto Captain Miles and then received it back. He does not know what happened to the "chit" subsequently.

42. When the applicant was discharged from 1 Field Hospital a duty driver was sent to bring him and his gear back to the East Hills Lines and then to report to the OC at Holsworthy. The applicant told the Tribunal that as he had his motor cycle at the hospital he arranged with the duty driver to carry his gear and follow him back to the Lines to store it before proceeding to the barracks. The Tribunal was not told how the applicant's motor cycle came to be at the hospital given the circumstances of his admission and supervision, but that does not seem to be relevant. On the way back to the Lines the applicant stopped his motor cycle because he believed he was having a mechanical problem with the brakes. The duty driver (Private Gordon) stopped to assist him. The applicant said that he was satisfied that he had fixed the fault and proceeded onto the Lines without further incident. The duty driver dropped off his gear in the car park at the Lines. The applicant took it to his room and proceeded onto the 4RAR barracks at Holsworthy where he presented himself to Lieutenant Besic. The applicant said that he was taken to Captain Miles, the Adjutant of 4RAR at the time. He said that when he handed the "chit" to Captain Miles he made some derogative remarks, screwed it up and threw it back to him stating that the applicant would be on guard duty in two days time. The applicant also said that Captain Miles had ignored Dr Zariffa's recommendation for two weeks recreational leave.

43. If the applicant's evidence is to be accepted then it seems that both Captain Miles and Lieutenant Besic had ignored an order from the Senior Medical Officer, to grant four days sick leave. This obtains no matter how one calculates the four days, if the "chit" commenced on 10 December 1996, as the applicant maintains, the earliest possible day that the applicant was due back on duty was the fourth day, that is, 13 December 1996. The applicant is claiming that Lieutenant Besic and Captain Miles were ordering him to mount duty on 12 December 1996. Further, the applicant claims that Dr Zariffa's recommendation to be given "administration" leave was not give proper consideration by the CO. However, under cross-examination by Mr Wallace it became evident that, at that time, the applicant would not have had sufficient accumulated annual leave. Further, the hospital notes (supra) indicate that the leave was merely a suggestion and was not ordered as indeed it could not be. A Medical Officer may authorise sick leave or light duties etc but cannot authorise recreation leave, which is an entitlement of service.

44. The reason why this incident is important, in the opinion of the Tribunal, is that it founds one of the critical elements of the applicant's case. That is, that he had reason to return to 1 Field Hospital, on the basis that Dr Zariffa had encouraged him to return if he felt threatened. Indeed, at T129, page 271, in a note to Dr Taylor on 28 November 1996, Dr Zariffa states:

"I feel he has improved to the extent that I could discharge him back to the unit, although I am now concerned over recent threats of retribution from his colleagues. I have reassured him that should this occur this hospital would always be available for support. ..."

45. Dr Zariffa confirmed this advice in his statement of evidence, exhibit A1, in which he states:

"I explained to Michael [the applicant] prior to his discharge that if he encountered any difficulties back at his workplace, he was welcome to return to the Hospital for assistance. He was given a medical certificate (chit) declaring him unfit for duty for 4 days, and a recommendation that he take a fortnight on administration leave, to see his family in Western Australia."

46. Captain Besic gave evidence in relation to the matter of the "chit". When questioned by Mr Christie for the applicant, Captain Bestic said that the applicant "certainly wasn't rostered to mount guard until that chit had expired" (tr. p189). And later, when pressed by Mr Christie, he said "If it [the chit] was in fact 4 days, regardless of whether it was 2 or 4 days, ... the day I ordered him to mount duty was the day after the chit expired and I do remember that quite clearly. It was the day after. ... the dates are inclusive on an Army medical certificate - he was to mount duty the day after the chit expired. And I briefed Major Miles on that at the time" (tr.p190).

47. When asked about the recommendation of Dr Zariffa for two weeks further leave, Captain Bestic told the Tribunal that the recommendation was considered briefly, and in his opinion, had Dr Zariffa considered that the applicant needed more leave then he would have given him sick leave (tr. p190). Captain Bestic said that both he and Captain Miles had agreed that the applicant was only to be given the authorised sick-leave prior to returning to work. He said that at the time the battalion was on "stand-down over the Christmas period with reduced numbers" so more personnel helped to maintain a security picket rostered on a day on/day off basis (tr. p190).

48. Captain Bestic's evidence is that both he and Captain Miles dealt with the applicant on 10 November 1996 in a professional and matter of fact way. He maintains that there were no derogatory remarks, swearing, tearing up or throwing of the chit as suggested by the applicant in his evidence. Captain Bestic agreed with Mr Christie that he was not satisfied with the applicant as a soldier and he felt this was also the attitude of Major Miles at the time (tr. p191).

49. Major Miles' evidence is that as the Adjutant he would not have the authority to override a medical certificate for sick leave and indeed, "not even the CO of the Battalion could override that chit" (tr. p216). Major Miles, when questioned by Mr Christie, said that he had no recollection of seeing the applicant on 10 December 1996 although he does recall being informed later that night of the accident involving the applicant. Major Miles' evidence is that as Adjutant he would not normally deal with the members of the company other than the COs unless the member had done something commendable or was in trouble. His evidence was that he did not deal with medically authorised sick-leave as it does not involve any decision making. The company CO, in this case Lieutenant Bestic, would need to be informed about the sick leave but otherwise it is a routine matter. Major Miles, when pressed by Mr Christie, maintained that he had no recall of seeing the applicant that day and could think of no reason why he might. He did though concede that if the CO sought approval of recreation leave for a member who had insufficient accumulated leave then that might be an occasion on which he may see that member.

50. In the Tribunal's opinion, whether it should accept or reject the evidence of the applicant in relation to this "chit" incident is not without difficulties. The chit in question could not be produced. There is no unequivocal evidence that it was issued on 10 December 1996 rather than 9 December 1996 as was a possibility suggested by Mr Wallace. The evidence of the applicant is that he was ordered to mount guard duty on the day prior to the expiry of the sick leave chit. The evidence of Captain Bestic is that he would not have done that as he had no power to override a medical certificate authorising sick leave. That is consistent with the evidence of Major Miles. The Tribunal is mindful that such evidence is not surprising in the circumstances. However, there certainly was no intimation or suggestion by Mr Christie, nor does the Tribunal suggest, that Captain Bestic and Major Miles had concocted their evidence - in the Tribunal's opinion their truthfulness was not in question. Indeed, in the Tribunal's opinion, the fact that Major Miles was not adamant about his recollection of events some 5 years ago lent credence to his evidence. And the matter of the actual date when the applicant was required to return to full duties and mount guard duty was not resolved beyond reasonable doubt. The applicant said that he was ordered to mount guard in two days from 10 December 1996 whereas Captain Bestic said the applicant was ordered to mount guard when the chit expired. Captain Bestic said he discussed the chit with Major Miles (Captain Miles at the time) whereas Major Miles has no recall of any such discussion. Major Miles was aware of the accusation by the applicant that he, Miles, had responded when the applicant handed him the chit by the use of strong language and "threw the chit at him or tore it up and walked away" (R6). Despite this accusation and the fact that Major Miles was notified immediately about the applicant's accident later that night, Major Miles said he has no personal recollection of ever having dealt with the applicant. Major Miles admitted under cross-examination that there were occasions when he had sworn at soldiers but said that the mere matter of a sick leave chit or a leave application would not provoke in him any such reaction. For the above and following reasons, in the context of what then transpired on 10 December 1996, it is more probable than not that the applicant was disappointed with the fact that the two weeks recreation leave recommendation was rejected at a time that he was feeling isolated, was still on medication, harboured fears about his safety, and wanted to be with a support group (see T129, p172). In the Tribunal's opinion it was these concerns rather than the order to return to duty, that troubled the applicant that afternoon.

51. The applicant gave evidence about his activities once he had returned to his barracks on 10 December 1996. He maintained that he had a beer with his evening meal, joined with three colleagues, Privates Sneddon, Burrell and Katie Murahy (spelling uncertain), back at the barracks and together drank a bottle of bourbon. He said that during that session he showed his colleagues the chit and expressed his concern that he had been unfairly dealt with by the CO and Captain Miles who had ordered him back to duty before the expiration of his authorised sick leave. He said that Private Sneddon advised him to "go straight back and see the doc and he'd sort it out". (tr. p25) Mr Christie asked the applicant what happened after that, to which he replied:

[The applicant] "Well, I sort of, I was just - I don't know, in a weird frame of mind so I just thought I'd just sit there and just - so I was just trying to, I don't know, liven up and be a little bit more happy around Burrell and Sneddon. Then I fell asleep and then when I awoke I was just, I don't know, anxious or just in a weird frame of mind about it, about the whole thing playing on my mind. So I went back to my room and got my bike and rode to - was on my way to Liverpool Hospital - Ingleburn Hospital." (tr. pp 25-26)

52. It should be mentioned in context that Dr Zariffa made the following statement in (Ex. A1) after disclosing that the applicant, upon discharge from hospital on 10 December 1996 was on anti-depressant medication, namely 600 mg/day of Moclobemide:

It is my standard practice to advise patients upon discharge not to drink alcohol whilst on a course of medication. In Michael's [the applicant's] case, my advice would have been somewhat more compelling, in light of his history of alcohol-related troubles."

53. T10 is a note by Niel Arbuthnot, dated 5 January 1998, in relation to the applicant's claim for compensation pursuant to a claim form purported to have been completed and lodged early May 1997, although there is no record of such a claim then having been received. Mr Arbuthnot and another person interviewed the applicant on 2 January 1998 and record that when he had the accident he said that he was travelling from his residence at East Hills to 1 Field Hospital to receive medical treatment. The note also states that the Police Traffic Collision Report shows that the applicant had a blood alcohol reading of 0.239, "however he is disputing this through legal channels as he states he had not been drinking before the accident". (T10) When asked about this alleged challenge the applicant said that the matter of laying charges against him had been dropped. He said no conviction was recorded by the New South Wales authorities. Be that as it may, it does not change the fact of the record (T10). There is no evidence that the blood alcohol level recorded was not reliable.

54. The applicant claimed that when he left the Lines that night on his motor cycle he travelled to the Holsworthy Barracks, (about 2 kilometres). He continued through to the Artillery Road exit as this was the most direct route, and the one with which he was familiar, to 1 Field Hospital at Ingleburn. It was on this route that he had his accident on the overpass from Cambridge Avenue to Glenfield Road. This raises another question of credibility for the Tribunal. For if the applicant did not take that direct route, as he said, it remains unexplained as to why he was at the accident site if, as he claims, he was going to 1 Field Hospital. The evidence of each of Captain Bestic and Major Miles is consistent in this regard. They each maintain that between 6.00pm and 7.00pm each night the Brigade duty officer secures the rear gate, across the bridge at the eastern end of Artillery Road. Captain Bestic said that he had had that role during the time he was at Holsworthy. Both Captain Bestic's and Major Miles' evidence is that it was not possible to skirt around the gate due to the topography and fences, which they described. Both said that the securing of the gate each evening would have been recorded in the Brigade's daily log. That log was not before the Tribunal. When pressed by Mr Christie, both agreed that they had no personal knowledge of the gate being secured on the night of 10 December 1996 and conceded that it was possible that it had not been secured - although adding that in their respective experience that would be unusual. Both Captain Bestic and Major Miles had been attached to Holsworthy for a number of years and relied on that experience in giving their evidence.

55. As previously stated, the Tribunal assesses each of Captain Bestic and Major Miles as witnesses of truth and independence. The evidence points to a reasonable conclusion that the applicant was quite intoxicated when he rode his motor cycle out of the Lines and, in the light of the subsequent accident, his recollection of the actual route taken that night is unreliable. The Tribunal forms the conclusion, on the evidence as a whole and on the balance of probabilities, that the back gate to the Holsworthy Barracks, across Artillery Road as described, was secured and did not permit the applicant to leave the Barracks via Artillery Road as he testified. This conclusion, of itself, is not fatal to the applicant's claim but rather adds doubt to the applicant's assertion that he left the Lines that night to travel to the 1 Field Hospital for treatment (or indeed, to obtain a further medical certificate).

56. During his cross-examination of the applicant, Mr Wallace inquired as to why he had not followed standing orders that night (in relation to arranging transport to seek medical attention) or taken the time to call Dr Zariffa as he had offered, should the applicant experience any trouble. The relevant standing order, as the Tribunal understands it, is that if the RAP is closed, as it would have been late at night, then personnel seeking medical attention must contact the CO who would instruct the duty officer to take the member to the hospital for medical attention. It is not part of the CO's or the duty officer's task to assess the need but rather to arrange and carry out the transporting activity at the instruction of the CO. Mr Wallace put it to the applicant that he was aware of this standing order because of his past experience at Holsworthy. The applicant's evidence, in effect, was that he saw no point in going back to either Lieutenant Bestic or Captain Miles in this regard because it was their orders, which he was seeking to have countermanded. And in response to the matter of contacting directly Dr Zariffa, the applicant said that he was confused earlier in the evening, after his encounter with Lieutenant Bestic and Captain Miles and did not think to call Dr Zariffa at that time.

The evidence in relation to the claim for compensation

57. The applicant's compensation claim form is signed and dated by him on 2 January 1998 (T7), over 12 months after the accident on 10 December 1996. In it the applicant states that he reported the accident to Captain Phoenix, the second in-charge of Alpha Company 4RAR, on 10 December 1996. According to Captain Bestic, at that time Captain Phoenix was Senior Officer looking after the day to day running of the Battalion as the Battalion had commenced "stand-down and Christmas leave" (tr. p185). Captain Phoenix did not give evidence.

58. In the claim form the applicant states the injury occurred whilst "travelling between Barrack and Hospital" and that he took the direct route between the start and the (intended) finish of his journey (T7). An unsigned statement dated "May 1997" asserts that the motor cycle accident happened when the applicant was "go[ing] back to hospital" (T9). The applicant said in evidence that he did not sign the statement because he did not agree with it, but he was not specific as to which aspect or aspects of the statement with which he disagreed.

59. As mentioned, T10 is a report by Mr Arbuthnot which refers to a purported claim lodged by the applicant in May 1997 but for which no record exists (see also T11).

60. The applicant's written statements of evidence, exhibits A2a and A2b, completed for the purposes of these proceedings are dated 22 March 2001 and 20 September 2001 respectively. In the first statement (A2a) the applicant said in recounting the events immediately preceding his taking the journey leading to the accident on 10 December 1996:

"33 ... I dozed off whilst the others were still talking and slept for a while at Sneddon's place. I woke up. I don't know what time it was, I know it was late but not the exact time, as I didn't have a watch. I decided that I would go back and see Dr Zariffa because of what Sneddon had said and Captain Miles has said and because I wanted his advice and support as to whether I was sick and on leave or whether I had to accept Captain Miles decision that I was back on duty.

34. I didn't speak to any one or see anyone. I was in the living room area of Sneddon's place, I assume he had gone through to the bedroom.

35 I remember hopping on my motorbike and riding it from the Barracks going to the Hospital. ..."

61. In the later statement, made in response to statements filed subsequently by other witnesses, the applicant states in this context:

"12 I recall when walking to my motor bike on the night of the accident that I walked past Pte Smith, but at no time did I see Pte Shaw."

62. Exhibit R1 is a four-page statement completed and signed by the applicant on 4 April 1997. That is, it is the first recorded statement after the accident. It was for the purpose of an investigation into the motor cycle accident on 10 December 1996. The statement was taken by Constable Devilee of the Perth Crash Investigation Section and countersigned by him. In the context of the applicant's recall of his purpose for the journey on 10 December 1996, he states:

"I have been told by Constable Devilee that I don't have to say anything further unless I wish to but what I do say may be recorded and may be used in evidence.

I understand this and will continue.

On Tuesday the 10^th December 1996 at about 11.30 pm I was riding my motor cycle a Suzuki R.E.V 250cc. I don't remember the registration number.

I remember leaving the East Hill Army Barracks, East hills. I remember going through a round a bout on Cambridge Street, and then I woke up a week later in hospital. ...

I don't recall anything after the round a bout. The next thing I remember is waking up in hospital a week later with tubes everywhere. ...

I had my last drink at about 6.00pm. I then went to sleep. I got up about 11.00pm, I don't recall where I was going when I left the Barracks. ..."

63. In her signed statement of 20 September 2001 (A4), the applicant's sister, Ms Luxford states, in the context of the reason for the applicant's motor cycle journey before the accident:

"14. On or about the 13^th December 1996 I asked the Applicant about the accident. He stated that that (sic) on the evening of the accident he returned from the Field Hospital as he had been given leave to come home, however his CO Refused (sic) to give him leave. Michael told me he then went to the mess with around 3 mates and shared a 750ml bottle of Jim Beam and coke between them. He then went to bed and awoke a few hours later and being unsure as to what to do as his leave was denied decided to return to the hospital and that his accident occurred on his return trip to the hospital."

64. During her examination in chief by Mr Christie, Ms Luxford confirmed the above statement (tr. p123). Mr Wallace, in cross-examination tested the witness on this statement by reference to the detail it reflected. Ms Luxford maintained her position that the statement was correct subject to the possibility that the applicant may have said he went to sleep rather than bed. Ms Luxford maintained that even though the applicant was in the intensive care unit of Royal North Shore Hospital at the time and under heavy sedation, he was lucid from time to time. She said "the only matter that Michael appeared unclear was as to the exact circumstances of the accident and his injuries" (A4, para 15).

65. The applicant's Mother, Ms Penn, also gave evidence. Her statement, A5, makes no reference to any conversation that she may have had with the applicant whilst in Royal North Shore Hospital, or as to the reason why the applicant was travelling on his motor cycle at the time of the accident on 10 December 1996. She does however, admit that she "was extremely distressed at the time and for some time after" (A5, para. 12). The following evidence was given during Mr Christie's examination of Ms Penn:

MR CHRISTIE: Why were you in Sydney at the time?---To be with Michael.

Okay. During the time whilst you were in Sydney, did you have any discussions with Michael concerning the circumstances of his accident and matters leading up to it?---Yeah, quite a - quite a lot of conversations because I've worked in law firms previous, so I was sort of quite aware that you try to gather evidence as quickly as possible and especially because I knew Michael would be coming back to Western Australia. So as soon as he was fairly lucid from, you know, once the morphine had stopped, I was trying to get the details from him of what he'd been doing on that particular night, where he was going, the full - the full story as to how the accident occurred, to the best of his recollection and what he was doing.

And what did he tell you?---He told me that he'd been discharged from the One Field that day. He said that on the way back to - he was going back to the - apparently it was in a, like a triangle or something at One Field and he had to go back to base. He rode his motorbike. For some reason the motorbike was at the hospital and there was a duty driver came to take his luggage and his bike broke down on the bridge or something at Campbelltown - Glenfield, Glenfield Bridge, I think it was. I've seen the photographs of it. And he told me that the front brake calliper locked up and he dislodged it or something. There was a stone or something in it and he fixed it and he went on his way to Holsworthy and he went and saw the duty officer and he wasn't allowed to have some recommended leave that was given by the doctor at One Field. And he went back to the lines. He went to the mess where they have their food and he had his dinner. He had a beer and then he went back to the lines with some - three other privates and they drank a bottle of Jim Beam.

And then what happened?---And then he said he - he told me that he thinks it was about 6.30 or something, he went to bed. When he woke up later in the night, he decided to go back and talk to the doctor at the One Field Hospital.

...

You said that he decided to go to One Field Hospital?---Yeah.

Did he say what happened after he decided to do that?---He got on his motorbike and he drove to the hospital and the accident - apparently the accident occurred at the spot where the brake calliper had locked up earlier in the day because that's the road or something that they - it's a military road but it's a civilian road and that's the road they use to go to One Field.

When he told you that the brake calliper locked up at that spot, did he say anything else about the accident?---He - well, at that - at that stage within a few days of the accident, he couldn't recall an awful lot. He remembers - he remembers going to his motorbike. He remembers being in a chopper which was after he was operated on at Liverpool Hospital, but then in subsequent days he - little bits of memory were coming back to him and he remembered headlights, he remembered being on the - travelling to the hospital and he just - he just wanted - he just wanted to get back there, I think, just to go an talk to the doctor. (tr. pp142-143)

66. This evidence was the subject of cross-examination by Mr Wallace. The following exchange occurred between Mr Wallace and Ms Penn:

MR WALLACE: Well you were able to tell the Tribunal some things that weren't set out in your statement. About all of the circumstances involved in Michael's - the night of Michael's accident. Why didn't you put them in your statement?---Because I didn't realise they were relevant. (tr. p146)

The Tribunal notes that this statement is difficult to reconcile with what the witness said during her examination-in-chief, as reproduced immediately above. That evidence is explicit about the need to get the evidence as soon as possible and, Ms Penn had said, that was a purpose of her having "quite a lot of" conversations with her son at the Royal North Shore Hospital.

67. The transcript continues:

MR WALLACE: You didn't - you were the person who said you were looking around at the time, trying to get statements from people, and now you are saying you wouldn't have realised that all of the facts that Michael could recall on or about 13 December were relevant to what you were seeking to assist him with. Is that so?---That's correct.

That would be a lie, wouldn't it, ma'am?---No.

You see, you told the Tribunal that Michael had memories. He was able to tell you of events. You particularise those events. You don't include those in your statements. And, then knowing he has a memory of things, you tell him that he should tell the Police officer he couldn't remember?---I did that on legal advice.

This man wasn't your solicitor in the sense that he was providing you. He wasn't representing you in any action by the Police, was he?---No.

So you were prepared, I suggest, to take advice that you knew was wrong to assist Michael in the action that the Police might commence against him because of his drunk driving?---I didn't know it was in relation to drunk driving, sorry.

Well, why else would they be wanting to speak to Michael about?---I don't know.

Why would you have engaged a solicitor?---And that - I engaged a solicitor who was actually a personal injury solicitor. He wasn't a criminal solicitor. It was for personal injuries.

Well why would you know that Michael did have a memory and conspire with this solicitor to tell the Police a falsehood?---I don't know. The solicitor wanted to not make everything known at that moment. That is what he told me.

(withdrawal)

You are prepared to get Michael to lie to the Police, aren't you? That is what you did. If your evidence here today is correct?---I don't think it is lying.

It is not lying, to advise your son to make a statement knowing it to be untrue to a Police officer in respect of proceeding that the Police officer had told him he was interested in?---Well, the Police that came were the West Australian Police and apparently they were unsure as to why they needed to take as well.

How do you know that? You weren't there. Is that something else you are making up?---No, I am not making it up. I don't make anything up.

You have got a very good reason to come along and say the things that you have said today, because you want to see the best you can for Michael. That is true, isn't it?---I want to see the Army take responsibility.

Well, you see, that is another motive for you, for coming along here and lying to this Tribunal, isn't it?---I am not lying Mr Wallace.

68. In the opinion of the Tribunal the above is the essential and relevant evidence in relation to the claim form (T7) for compensation dated 2 January 1998 and acknowledged by the Department of Defence by letter dated 5 January 1998. In the opinion of the Tribunal, the timing of the lodgment of the claim form is critical to this matter because of the hiatus of over a year between the accident and the lodgment. The earliest reliable statement that the Tribunal has is exhibit R1, a statement by the applicant to the Western Australian Police made on 4 April 1997. In it the applicant stated "I don't recall where I was going when I left the barracks". Against that the Tribunal has a statement prepared in May 1997 by a Captain F Khan, for the applicant's signature but which the applicant refused to sign. This states inter alia: "I woke up at about 2230 hrs feeling anxious and in a panic. I did not know what to do so I decided to go back to hospital" (T9). Then the Tribunal has the subsequent statement by the applicant, exhibit A2a, prepared and signed in March 2001, which reflects the applicant's evidence confirmed orally, that he was travelling to 1 Field Hospital at the time of the accident. In that statement the applicant said he wanted to see Dr Zariffa and get his advice and support as to whether he was on sick leave or whether he had to accept Captain Miles' decision that he was back on duty, (A2a, para.33). The statement by Ms Luxford of 20 September 2001, corroborates that of the applicant in this regard with the exception of the reason why the applicant wished to see Dr Zariffa at the hospital that night. The applicant said it was in relation to the sick leave whereas Ms Luxford thought it related to the other leave recommendation. Ms Penn, in her statement of 20 September 2001, made no reference to any conversation with the applicant about the reason for his leaving the Lines on his motor cycle that night. However, in her oral evidence she was quite explicit about the reason, which largely reconciles with those of the applicant and Ms Luxford.

69. The Tribunal must weight this evidence having regard to other aspects of evidence and conclusions, which it has reached. Firstly, it is clear that the applicant's own evidence is contradictory. The earliest statement, in April 1997, is diametrically opposed in this regard to the more recent statements, including the unsigned statement of May 1997. It seems that it was not until after April 1997 and before the May statement that the applicant recalled the purpose of the travel from the Lines to 1 Field Hospital. This is despite the applicant's mother's oral evidence and sister's evidence (A4) that he recalled the purpose of the travel whilst in the North Shore Hospital's intensive care unit on 13 December 1996. The Tribunal is satisfied that the applicant is not a reliable witness. And this might work to his benefit if the Tribunal believed that the earlier statement (R1) was a falsehood. But his Mother's evidence is that he gave that statement to the Police before she was able to pass on the advice of his solicitor, to not remember. Further, the evidence is that his Mother, Ms Penn was emotionally upset and stressed at the time of her visit to the applicant in the ICU at Royal North Shore Hospital on 13 December 1996. Further, that it was Ms Luxford who said she spoke to the applicant about the accident. Ms Penn was more focussed at the time on her son's welfare and care. In any event, the evidence generally does not support a conclusion that within three days of the applicant's severe trauma, when still sedated and on morphine, that he was in any way fit to discuss in any detail the events of the evening of 10 December 1996. That is, the events of a few hours before and leading up to the accident. The further fact which the Tribunal accepts is that the applicant was very drunk when he left the Lines on his motor cycle and it is possible that his thoughts as to why he was leaving the Lines that night were, on balance, muddled.

70. The Tribunal accepts that the applicant was disappointed that the recommendation for recreation leave had been denied. He may have been under the misapprehension that Dr Zariffa had authority to countermand that and order instead that he be given recreation leave. However, the evidence is equivocal as to what was the supposed reason for the applicant to seek out Dr Zariffa at that late hour. The evidence is not clear as to whether the applicant was seeking a further medical certificate, medical treatment, to have Dr Zariffa do something about the recreation leave, or simply for the applicant to report that he felt he was being unfairly dealt with by his CO. Further, the applicant took no action to speak to Dr Zariffa for several hours after having seen Lieutenant Bestic and Captain Miles that afternoon. Instead, if his evidence is to be accepted, he went and had a meal, then a few drinks with some mates before retiring for the night. All of this suggests a person not overly concerned with what he then perceived to be an injustice handed down by his CO in cooperation with the Adjutant, and in relation to which he understood he could appeal to Dr Zariffa about should that eventuate. In the Tribunal's opinion, if the applicant's evidence was accepted then it almost beggars belief that he would rise in the middle of the night and contrary to standing orders, set out for the hospital, when he did not even know if Dr Zariffa was on duty. This is reinforced by the fact that the applicant still had one further day of sick leave, 11 December 1996, during which he could have attended the hospital for whatever reason, without breaching standing orders. The Tribunal notes that apart from the evidence of his immediate family members, there was no other evidence called by the applicant to support his assertions. That is, no other oral evidence from those soldiers with whom he socialised on the night of 10 November 1996 prior to leaving the Lines. For these reasons the Tribunal finds that at the time he left the Lines on 10 December 1996, the applicant was intoxicated and at best confused as to both where he was going and the reason why he was leaving. In this context the Tribunal repeats its earlier finding of fact. That is, that for the applicant to have been at the scene of the accident without being able to leave the Holsworthy Barracks by the Artillery Road exit, (because the gate was secured), he was not travelling by a reasonably direct route to the 1 Field Hospital.

71. For the above reasons the Tribunal does not accept that on the night of 10 December 1996, when he left the East Hill Lines by motor cycle, the applicant's purpose was to travel to the 1 Field Hospital to seek a medical certificate, or medical treatment for a physical or mental injury arising out of or in the course of his employment. Even if the applicant set out to go to the 1 Field Hospital that night, (which is not established), on the balance of probabilities, his purpose (if any) was to complain to Dr Zariffa about the rejection of his recommendation about recreation leave.

The applicant's depression

72. The applicant was admitted to the 1 Field Hospital at Ingleburn on 1 November 1996 in circumstances discussed above. His treatment included psychiatric treatment by Dr Zariffa under the direction of specialist psychiatrist Dr Taylor, who confirmed a diagnosis of major depression (A1). Dr Taylor saw the applicant in his rooms on three occasions; 7, 21 and 28 November 1996, (T129 pp.269-271). He identified the stressors as "lack of social supports, increased alcohol intake and neck pain". On the last occasion, 28 November 1996, Dr Taylor recommended that the applicant return to his unit and if threatened or assaulted to report it to the appropriate authorities and to return to 1 Field Hospital. In fact the applicant returned to 4RAR on 10 December 1996 after what Dr Zariffa referred to as "repeated counselling".

73. Evidence was given by Dr Penman by way of a report dated 18 January 2001 (A6) and orally. Dr Penman saw the applicant in his rooms on 5 January 2001. He took an history from the applicant relevant to his Army service and the events leading up to his admission to the 1 Field Hospital on 1 November 1996 and immediately following his discharge from that hospital on 10 December 1996. Dr Penman was also provided with the reports of Dr Taylor, contained in the T documents, referred to above. It became clear to the Tribunal during the cross-examination by Mr Wallace that Dr Penman was not apprised by the applicant of all relevant facts and that some of the history given does not accord entirely with the evidence now before the Tribunal.

74. When provided with more facts about the applicant's drinking history, Dr Penman agreed with Mr Wallace that symptoms identified by Dr Taylor as affecting the applicant prior to his hospitalisation may have been due to alcohol and withdrawal. Those symptoms, cited by Dr Penman from the report of Dr Taylor were: "sad mood, irritability, sleep disturbance (middle insomnia), energy levels OK, early morning waking 4.30am, predominant associated anxiety, preoccupied with suicide, motivation poor, concentration/memory not too bad, sex drive poor, no hallucinations, no delusions, view of self negative, view of future pessimistic, mood non-reactive".

75. Dr Penman in his report agreed with the diagnosis of Dr Taylor that whilst in 1 Field Hospital the applicant suffered from major "Depressive Disorder, Single Episode (296.2)". He attributed the following factors (as summarised by the Tribunal) as contributing to this illness: lack of social support at Holsworthy; allegations of the applicant suffering a "hard time" at the hands of fellow soldiers; and his ongoing chronic neck pain (which Dr Penman said may have contributed to his drinking). During cross-examination by Mr Wallace it was pointed out to Dr Penman that for the six week period that the applicant was a patient at 1 Field Hospital he complained only once of any neck pain. Dr Penman agreed that the pain was probably not chronic but possibly episodic.

76. Mr Christie asked Dr Penman whether these matters and the applicant's previous ankle injuries were likely contributing factors to the applicant's depression. Dr Penman said that it is difficult to say that they are likely but that certainly they were quite possibly contributing factors (tr. p.162).

77. The Tribunal asked Dr Penman his opinion of whether Mr Ross, on the night of 10 December 1996, may have been incapable of making a rational decision given a blood alcohol level of 0.239. Dr Penman observed that a high blood alcohol level is clearly going to affect the thought processes so that it would be much less likely to make a rational decision under those circumstances (see tr. p175). Mr Christie, on re-examination followed up as below:

MR CHRISTIE: ... the evidence was that he went to sleep or dozed off for a period and then woke up and decided to drive, that was his evidence. What do you say about that?---Well, its difficult to know how much, he obviously had some sort of well, I don't say obviously, he perhaps has some sort of memory of his discussion. But I would find it difficult to answer the question of whether he might - or Ross would be able to make a rational decision at that moment with that sort of blood alcohol level but I would - to clearly think it through one would have to throw some sort of doubt on that.

I suppose my question was not whether he made a rational decision because it was perhaps obviously a very foolish decision but whether he could make that decision, impulsive, rational, irrational, stupid, whatever?---Well, if he's awake, wakes up, he's obviously having thought processes, he's thinking. If this is a thought that comes into his mind, what happened just before he went to sleep, that there was this discussion then I see no reason why he wouldn't enact that without thinking of the dangers he was putting himself through by driving off. (tr. p176)

78. Medical nursing notes made whilst the applicant was in 1 Field Hospital, suggest that the applicant may have suffered depression before his enlistment in the Army. The applicant, his mother and his sister each denied this assertion. In the opinion of the Tribunal neither reports of Dr Taylor nor Dr Penman support a diagnosis of pre-existing depression. Dr Penman makes no reference to the applicant suffering depression when he was seen in January 2001. He refers to the diagnosis as a single episode of major depressive disorder, confirming that of Dr Taylor. In the Tribunal's opinion, and on the balance of probabilities, the applicant is not suffering from ongoing depression (an impairment) caused by or aggravated by his Army service. However, when given additional facts and despite Dr Penman accepting it as possible that the applicant's symptoms may have arisen from the after effects of excessive drinking, he did not change his opinion of the diagnosis. The Tribunal concludes that the applicant was admitted to 1 Field Hospital on 1 November 1996 with a depressive disorder attributed to his Army service. There is no evidence that when released from 1 Field Hospital on 10 December 1996 that the applicant's condition was not then manageable by the prescribed medication and that, subject to the few days of sick leave granted, he was medically fit to return to full duties. Based on the evidence generally and Dr Zariffa's statement (A1) in particular, about the risk of drinking alcohol and taking the prescribed medication, the Tribunal is of the opinion that the applicant's heavy drinking on 10 December 1996 leading up to the accident, was a significant, if not the major, factor contributing to the circumstances of the accident.

The Submissions

79. There was agreement between counsel that the applicant's depression, treated at 1 Field Hospital, arose out of, or in the course of, the applicant's employment with the Defence Forces. However, Mr Wallace submitted that as the treatment was paid for by the employer and that the employee continued to receive his salary during the time he was absent on sick leave (that is, there was no loss of remuneration), then there is no basis for a claim for workers' compensation. He cited s4(8) of the Act in support:

4(8) A reference in this Act to an injury suffered by an employee

is, unless the contrary intention appears, a reference to an injury

suffered by the employee in respect of which compensation is payable

under this Act.

Mr Christie in response rejected any assertion in this regard that that denies an employee a right to claim compensation for an injury. He submitted that it is the circumstances of, and the injury itself, which is the central to any compensation claim.

80. Mr Christie's submissions included the contention that the evidence supports the conclusion that the reason why the applicant was travelling on the night of 10 December 1996 to 1 Field Hospital was to seek medical treatment for his depression. It was not submitted that the applicant has since suffered an aggravation of that depression arising out of or in the course of his Army service.

81. Therefore, the central issue, the purpose of the applicant's travel on the night of 10 December 1996, was the principal subject of submissions by each counsel. And it is the findings in relation to that issue that will determine whether the respondent has any liability toward the applicant under the Act.

82. In this regard Mr Christie submitted that the Tribunal should accept the evidence of the applicant as to his purpose of leaving the Lines that night. Further, that this evidence was supported by Ms Luxford and Ms Penn, particularly Ms Luxford who said in evidence that she spoke with the applicant at the Royal North Shore Hospital on 13 December 1996 about this very point.

83. Mr Christie raised the matter of the conflicting statements by the applicant, exhibits A2a and R1. He submitted, in relation to R1 that the applicant had been advised in April 1997 when interviewed by the police, to say he did not remember the reasons for leaving the Lines on 10 December 1996. For reasons above and with respect, the Tribunal does not accept that to be a fair reflection of the circumstances. The evidence of Ms Penn, at best is that she was unable to relay this advice to the applicant before the interview commenced. Her evidence leaves open the possibility that the advice was not relayed to the applicant before the interview with Constable Devilee had finished. Mr Christie made further submissions as to why the Tribunal ought to prefer the applicant's evidence as contained in A1 this regard. However, the Tribunal reiterates its earlier conclusion in relation to the credibility of the evidence of the applicant, Ms Penn and Ms Luxford concerning the reason as to why the applicant left the Lines that night.

84. Mr Wallace, in his submissions canvassed the evidence thoroughly. With the possible exceptions of his submissions in relation to the report of Dr Penman (A6) and the matter of "gross misconduct" (below), in the opinion of the Tribunal the substance of Mr Wallace's submissions is covered in the preceding discussion of the evidence. In relation to Dr Penman's evidence, Mr Wallace submitted that because Dr Penman based his opinion principally on the history given to him by the applicant, which proved wanting in many respects, then that evidence should be given no weight. The Tribunal has taken a different tack in this regard, and its relevant conclusions are set out in context above. Another submission made by Mr Wallace relates to what the Tribunal calls the "gross misconduct" issue. The Tribunal has not canvassed that issue in particular. Mr Wallace submitted that the applicant's actions on the night of 10 November 1996, when he left the Lines were tantamount to gross misconduct. Those particular actions were that he was in breach of standing orders when he left the Lines and he was intoxicated. Further, in any event, because the applicant was then on sick leave he was not on duty. These facts, it was submitted, notwithstanding s14(3) of the Act, operate to deny the applicant an entitlement to workers' compensation. Mr Christie, in reply contended that even if, on the night of 10 December 1996, the applicant was adjudged to have been engaged in an activity fitting the description "gross misconduct", it does not matter because of the s14(3) of the Act's exclusion for serious and permanent impairment. For reasons mentioned the Tribunal does not find it necessary to contend with that issue since it finds that in any event, the applicant, at the time of the accident, was not travelling for a requisite purposes as set out in s6(1)(b)(vii)(A) or (B) of the Act and therefore the injury sustained by the applicant on the night of 10 November 1996 did not arise out of or in the course of the applicant's employment with the Army.

Decision

85. For the above reasons and pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.

I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member & Dr P Staer, Member

Signed: ............(sgd V Wong)..................................

Associate

Date/s of Hearing 3, 4 & 5 October 2001

Date of Decision 29 January 2002

Counsel for the Applicant Mr Henry Christie

Counsel for the Respondent Mr John Wallace

Solicitor for the Respondent Mr Callum Fraser