Ramsdale and Comcare [2011] AATA 40 (31 January 2011)

Last Updated: 1 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 40

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/1069

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KEVIN GRAEME RAMSDALE

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

The Hon R J Groom AO (Deputy President)

Date 31 January 2011

Place Hobart

Decision

The decision under review is set aside and the matter remitted to the respondent with the following directions: (a) The respondent is liable to pay compensation to the applicant in accordance with the provisions of the Act in respect of an injury, namely an aggravation of his pre-existing PTSD, suffered by the applicant on or about 18 October 1993. (b) The applicant is incapacitated for work as a result of the said injury and has been so incapacitated since 14 May 1995. (c) The amount of compensation payable to the applicant is to be assessed.

[Sgd: Hon R J Groom]
Deputy President

CATCHWORDS

COMPENSATION - Vietnam war caused PTSD - later employed as police officer by Australian Federal Police - whether police service aggravated his pre-existing PTSD - whether notice given under section 53 of the 1988 Act - "in a material degree" - "aggravation" - PTSD aggravated by police service - decision under review set aside

Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 4(9), 7(2), 7(4), 14(1), 53

Compensation (Commonwealth Government Employees) Act 1971, 31(2), 53

Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316

Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232

Suters v Australian Postal Corporation (1992) 28 ALD 320

Comcare v Sahu-Khan [2007] FCA 15

Australian Postal Corporation v Bessey[2001] FCA 266

Ogden Industries Pty Ltd v Lucas [1967] HCA 30; (1967) 116 CLR 537

REASONS FOR DECISION

31 January 2011

The Hon R J Groom AO (Deputy President)

INTRODUCTION

1. Mr Ramsdale rendered war service with the Australian Army in Vietnam. As a result he suffered PTSD. He was later employed for some 20 years by the Australian Federal Police ("AFP"). He was involved in many stressful incidents during his police service. The question for the Tribunal is whether this employment by the AFP has caused an aggravation of his pre-existing PTSD and his continuing incapacity for work.
2. By determination dated 15 March 1995, Comcare denied liability stating that Mr Ramsdale's claimed condition "was not caused by or aggravated by his service with the AFP". An extension of time was granted to the 3 February 2003 for the applicant to seek a reconsideration of that determination. It was not until 17 December 2007 that a formal request was made for a reconsideration. Comcare accepted that request and proceeded to reconsider the earlier decision.
3. On 20 February 2008 an Independent Review Officer completed the reconsideration of the decision of 15 March 1995. That reconsideration decision, which is the reviewable decision now before the Tribunal, affirmed the earlier determination.
4. An application for review of the reconsideration decision dated 5 March 2008 was received and filed in this Tribunal on 13 March 2008.

BACKGROUND

5. Mr Ramsdale was born on 17 December 1947 and is therefore now 63 years of age.
6. He voluntarily enlisted in the Australian regular army on 7 February 1968 and served in Vietnam from 11 February 1969 until 17 December 1969. Mr Ramsdale was discharged from the army on 7 February 1970.
7. Mr Ramsdale saw active service whilst in Vietnam with the 1st Armoured Regiment. He was a driver/crew commander of armoured personnel carriers (APC's) responsible for the re-supply of tanks in the field, escorting damaged tanks and APC's back to Nui Dat and a range of other military activities. He personally carried a semi-automatic pistol and a M16 armalite rifle. He was conscious of the risk in the field of ambush or enemy capture and experienced many potentially life-threatening situations.
8. It is not in dispute in this application that Mr Ramsdale suffers from post traumatic stress disorder ("PTSD") caused by his military service in Vietnam and based on the medical evidence before it the Tribunal so finds.
9. Following his discharge from the army Mr Ramsdale was employed in various positions in Tasmania including with G J Coles and Co Ltd, in fruit picking and in the scrap metal industry.
10. Mr Ramsdale joined the Commonwealth Police on 7 April 1975. The name of the organisation later changed to the Australian Federal Police. He ceased employment with the Australian Federal Police on 15 May 1995. The total period of his police service was therefore in excess of 20 years.
11. During his police service Mr Ramsdale served initially as a uniformed officer at the Hobart Airport (1975-1976). After his service at the airport he was then attached to the Hobart plainclothes office (CIB) (1976-1981) and later was with the Tasmanian Combined Drug Enforcement (1981-1987). Following an application by him Mr Ramsdale was then seconded to the National Crime Authority in New South Wales (1988-1991) and subsequently to the Australian Securities Commission in Tasmania (1991-1993). He undertook further plainclothes duties prior to taking sick leave in October 1993. Mr Ramsdale retired from the AFP on 14 May 1995. When undertaking secondments to other organisations Mr Ramsdale remained at all times an employee of the AFP.
12. Mr Ramsdale alleges that stressful occurrences during his police service resulted in an aggravation of his pre-existing war-caused PTSD and permanent incapacity. Several medical witnesses gave evidence and expressed opinions about the probability of Mr Ramsdale's police service causing an aggravation of his PTSD. The Tribunal will proceed to explain the issues which require determination and will then make findings in relation to those issues including whether the 1971 or 1988 Act applies in this application, whether notice was properly given in accordance with section 53 of the relevant Act, about the applicant's credibility, also the various stressors alleged to have occurred during Mr Ramsdale's police service, assess the medical evidence, and will then state its conclusion and decision.
13. It is not in dispute in this application that the applicant was, at all relevant times during his police service, an "employee" within the meaning of that term in section 5 of the Act.

LEGISLATION

14. Section 14(1) of the 1988 Act provides as follows:

"14(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."

15. The word "injury" was at the relevant time defined in section 4(1) of the 1988 Act as follows:

"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 ..."

16. In section 4(1) of the 1988 Act, at the relevant time, "ailment" and "disease" were defined as follows:

"Ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)"
and
"Disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation".

17. Section 4(9) of the 1988 Act provides:

"A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened".

18. It is necessary for the Tribunal to be satisfied on the balance of probabilities that Mr Ramsdale's employment with the AFP contributed "in a material degree" to an aggravation of his pre-existing PTSD.
19. The meaning of "material degree" has been considered in a number of cases including the Full Federal Court decisions in Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316 and Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232 as well as by Ryan J in Suters v Australian Postal Corporation (1992) 28 ALD 320 and more recently by Finn J in Comcare v Sahu-Khan [2007] FCA 15.
20. It should be noted that the opinions of the Full Federal Court in both Treloar and Canute were obita although clearly most helpful in gaining an understanding of the true meaning of the word "material" as it appears in the Act.
21. In Suters Ryan J said, when pointing out that Treloar was actually considering legislation in which the word "material" did not appear, that:

"The case nonetheless contains a valuable exposition of the meaning of that word to which Courts and Tribunals are entitled to have regard when considering legislation containing it"

22. Finn J in Sahu-Khan after considering the earlier decisions suggests that the meaning of the word "material" as intended by the legislature in probably more accurately captured by the following definition in the Shorter Oxford Dictionary:

"4. In a material degree; substantially, considerably".

His Honour. however, concluded that statutory construction is not usually assisted by attempting to substitute one word for another and said that the best that "can ultimately be said" is that the definition of "material":

"(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) "in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee's employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation");
(iii) whether this will also be so in a given case will be a matter of fact and degree".

23. The word "aggravation" in the circumstances of this case means making a pre-existing disease worse. (See Ogden Industries Pty Ltd v Lucas [1967] HCA 30; (1967) 116 CLR 537 at 593). The cause of the worsening must be the applicant's employment. If there is a temporary aggravation which ceases to have any effect after a short period then there would be no entitlement to ongoing compensation for incapacity as a result of that aggravation. There would merely be an entitlement to compensation during that short period when the aggravation causes temporary incapacity.
24. Gyles J in Australian Postal Corporation v Bessey [2001] FCA 266 said as follows:

"6 It has been well settled by a series of decisions starting from Jordan CJ's judgment in Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157, including Darling Island Stevedoring & Lighterage Co Ltd v Hankinson [1967] HCA 10; (1967) 117 CLR 19; Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533 and Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399, that if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.
7 In the present case, there is no relevant dispute that spondylosis is an ailment, and that when riding a motor bike for mail delivery the spondylosis causes the respondent to experience symptoms (principally pain) which make such work unsuitable so incapacitating the respondent.
8 This would require compensation for the period when the symptoms were operative, but would not, without more, constitute continuing injury. To constitute continuing injury it would be necessary to go further and find that the work had adversely affected the underlying condition in some way which continued to have an effect. The mere fact that incapacity resulting from the spondylosis caused pain whilst working does not mean that the symptoms resulted from a work related injury (including aggravation) but rather resulted from the underlying condition".

THE ISSUES

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

(a) Whether:

(i) the applicant's entitlement (if any) arises from the Compensation (Commonwealth Government Employees) Act 1971 or the Safety, Rehabilitation and Compensation Act 1988.

(ii) the applicant gave notice as required by section 53 of the 1971 Act or section 53 of the 1988 Act (whichever is applicable).

(iii) does section 31(2) of the 1971 Act or section 7(2) of the 1988 Act apply in the circumstances of this application?

(b) Whether the applicant's police service "contributed to in a material degree" to any "aggravation" of his pre-existing PTSD within the meaning of the relevant Act.

(c) Has the applicant suffered an incapacity for work as a result of such an aggravation?

DOES THE 1971 OR 1988 ACT APPLY?

26. Counsel for each party expressed the view that it was likely that the 1988 Act applies. The Tribunal agrees with that view.
27. Section 7(4) of the 1988 Act makes provision for the date when an employee is taken to have sustained a disease or an aggravation of a disease. It is in the following terms:

"7(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first".

28. It is reasonable to infer from the evidence that the alleged aggravation of the pre-existing PTSD probably first resulted in incapacity for work on the 18 October 1993 when Mr Ramsdale took sick leave following the incident at the Anglesea Barracks. It was not until Mr Ramsdale's admission to the Hobart Clinic in August 1994 that it became apparent to his treating psychiatrist, Dr Burges-Watson, that stressful experiences during his police duties had contributed to his medical condition. It was at that point that medical treatment for the alleged aggravation commenced.
29. The Tribunal therefore finds that if the applicant sustained a work caused aggravation of his PTSD then the date he sustained that aggravation was the 18 October 1993 which is the date the aggravation first resulted in his incapacity for work.
30. The commencement of the 1988 Act was the 1 December 1988. It follows that the relevant Act applicable to Mr Ramsdale's claim is the Safety, Rehabilitation and Compensation Act 1988 ("the Act").

DID THE APPLICANT GIVE PROPER NOTICE UNDER SECTION 53 OF THE 1988 ACT?

31. Section 53 of the Act provides as follows:

"(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice - as soon as practicable after the employee's death".

32. The Tribunal finds that the applicant only became aware that his pre-existing PTSD may have been aggravated by his employment with the AFP shortly prior to making his claim for compensation. It was only at this time that he had sufficient knowledge to appreciate in any meaningful sense that his police service had played a part in the ill health he was then suffering.
33. The Tribunal is therefore satisfied that Mr Ramsdale did give notice to Comcare as soon as practicable after he became "aware of the injury". The obligation to give notice of injury is not an obligation to give notice after the happening of the injury but to give notice when the employee becomes aware of the injury.

The Tribunal finds that Mr Ramdale has satisfied the requirements of section 53 of the Act.

SECTION 7(2) OF THE 1988 ACT

34. It is necessary to briefly mention an issue raised by Mr Grueber in his closing address. He referred to the possibility that section 31(2) of the 1971 Act may apply because Dr Sale had given evidence of "... a greater incidence of PTSD amongst police than in the general population". It should be pointed out that Mr Grueber did not press the point and in fact said "I don't really make much of it". (Transcript page 493).
35. It has already been determined that the 1971 Act does not apply. The corresponding provision in the 1988 Act is section 7(2). I refer to the concluding words in section 7(2):

"... is significantly greater than the incidence of the aggravation of that disease among persons suffering from it who have engaged in other employment in the place where the employee was ordinarily employed".

36. That provision has no relevance to the circumstances of this application. There is no evidence before the Tribunal to enable a comparison of the incidence of PTSD, or an aggravation of that disease, among employees in the type of employment in which the applicant was engaged and others "engaged in other employment in the place where the applicant was ordinarily employed".
37. The Tribunal finds on the evidence before it that section 7(2) of the 1988 Act has no application in this case.

CREDIBILITY

38. The Tribunal had the opportunity over three separate days to observe and hear the applicant's evidence and to note his demeanour and the manner in which he responded to questions put to him.
39. The Tribunal has formed the view that Mr Ramsdale is a conscientious person who gave a frank and honest account of relevant events consistent with his memory and perception. His evidence concerning occurrences during his police service and the health problems he suffered was generally reliable.
40. There was some inconsistency between Mr Ramsdale's recollection of certain incidents during his police service in Hobart and the recollection and understanding of Mr Floyd Ballard who for a period had been Inspector-in-Charge of the AFP in Hobart. Those differences in recollection, in the Tribunal's view, are not of such significance to adversely influence its assessment of Mr Ramsdale's credibility.
41. It is noted that Mr McDonald, one of the witnesses called by the respondent, described Mr Ramsdale as "... honest, reliable, steady, ..." (Paragraph 16 of Mr McDonald's statement of 16 March 2010).
42. The only real issue of credibility which arose in the course of the hearing concerned the emphasis placed by Mr Ramsdale on his Vietnam War experiences and the effect on his health, up until the time he made his claim for compensation relating to his employment with AFP. From that point Mr Ramsdale tended to place more emphasis on his AFP work experiences.
43. Mr Lenczner for the respondent said this "always raises a little bit of a credibility issue" but went on to say "that is in no way a reflection on Mr Ramsdale, that is just the way the brain works ..." (Transcript page 552).
44. Mr Ramsdale's credibility was not seriously challenged at any point in the course of the hearing. This is significant as the evidence of stressful occurrences during Mr Ramsdale's police service is largely dependent on the reliability of his own account and recollection. The respondent did not call evidence disputing Mr Ramsdale's recollection of the stressful experiences during his police service. It is noted in a letter dated 13 March 1995 from Detective Superintendent E D Webster, who was the office-in-charge of the AFP in Tasmania, addressed to Comcare Australia, he indicated that he was really not able to provide any reliable information about any particular instances which might be described as life threatening in which Mr Ramsdale was involved. He did say there may have been some occasions, especially involving Family Court matters, which could give some persons the impression that there was an apprehension of violence. He went on to say that it is quite possible that Detective Sergeant Ramsdale, because of his illness or condition, perceived threats which were not obvious to other members. He then apologised for "not being more specific but the facts you require are not recorded within AFP records" (See T20 page 80)

FACTUAL EVIDENCE

45. As has been said it is not in dispute that Mr Ramsdale suffers PTSD caused by his active war service during 10 months in Vietnam. Again as has been pointed out, he later served in the AFP, including periods of secondment to other agencies, for a very lengthy period of some 20 years.
46. The applicant's case is that stressors which occurred during his police service have materially contributed to an aggravation of his pre-existing PTSD and that material contribution continues and has caused and continues to cause total incapacity for work.
47. The respondent contends that the applicant has suffered and continues to suffer Vietnam war-caused PTSD alone and that any illness or incapacity during his police service or since have been caused solely by that underlying PTSD. It is contended on behalf of the respondent that none of his experiences during his police service were sufficiently serious to materially contribute to an aggravation of his PTSD.
48. It is therefore necessary for the Tribunal to consider the nature of police work and the specific stressful occurrences which the applicant alleges occurred during his police service.

STRESSFUL NATURE OF POLICE WORK

49. Although the assessment of the actual affect on the applicant's health of his police work must depend on a proper consideration of the stressors he actually suffered, a number of medical witnesses expressed the view that police work can be a stressful occupation.
50. Dr Moore, a retired but experienced clinical psychiatrist expressed the following view in his report of 13 April 2005:

"With the benefit of hindsight, it was most unfortunate to say the least that Mr Ramsdale then in 1975 joined the Commonwealth/Federal Police. Superficially, the concept of using skills acquired in combat and military service in the Police Force is attractive. It is cheap for the employing organisation, in this case the Commonwealth/Federal Police as there is a reduction in the amount of training required. However, the difficulty in these circumstances is that combat veterans, a high proportion of whom develop Post Traumatic Stress Disorder, have this Post Traumatic Stress Disorder reinforced, reactivated, aggravated or considerably worsened by active Police duties. I have seen this in members of both Victoria Police and also the Commonwealth/Federal Police in my clinical practice in Victoria prior to moving to Tasmania in 2001.
...
Police work is dangerous. It may not be as dangerous as armed combat in military forces. However, worldwide surveys of Police Officers show a high incidence of Post Traumatic Stress Disorder arising directly from Police duties such as those which Mr Ramsdale undertook in the interval between joining in 1975 and last being operational in 1994 and also arising from internal and administrative matters.
Most Police Officers who develop Post Traumatic Stress Disorder join the Police Force without Post Traumatic Stress Disorder or without having previously had Post Traumatic Stress Disorder. Mr Ramsdale, by contrast, had active Post Traumatic Stress disorder arising out of Vietnam service, and while it was settling, it was gradually reactivated by the progressive series of stressors which he had during his time in the Commonwealth/Federal Police and the dangerous nature of the duties which he was involved in during that time". (PT36 at pages 117/118)

51. In his oral evidence Dr Burges Watson, again a retired experienced psychiatrist, with recognised expertise in PTSD, indicated that it is not uncommon for police officers to suffer PTSD when he said he knew "... dozens of policemen" who had suffered PTSD. (Transcript page 221).
52. When asked whether police work was suitable work for a person like Mr Ramsdale who was already suffering PTSD another psychiatrist Dr Reid said:

"For me the police work was always going to put him in danger and have the potential to exacerbate his condition" (Transcript page 406)

Earlier in his evidence Dr Reid had said:

"So somebody with a similar history of PTSD or his exposures in Vietnam, if you put them in the police force, you know the result is premature retirement through an exacerbation of his PTSD. So if he was working elsewhere - say if he stayed at Sims Metals for his working life, I would have thought he wouldn't have retired in his 40's. So it is something to do with his work that has worsened his PTSD". (Transcript page 394).

53. Dr Sale, who is also an experienced clinical psychiatrist and who was called by the respondent and is now principally involved in forensic and medico-legal work, acknowledged in his evidence that the incidence of PTSD is greater in serving police officers than others in the general population. Speaking of police officers and other emergency workers he explained:

"... by the nature of the job, they are going to be exposed to some very difficult scenes". (Transcript page 474).

54. Dr Sale did say, however, that:

"I believe that many police officers, serving police officers, do have and continue to work with low grade PTSD symptoms ..." (Transcript page 473)

INCIDENTS DURING APPLICANT'S POLICE SERVICE

55. Mr Ramsdale has detailed numerous incidents during his 20 years of police service which he said caused him to sense personal danger and at times to fear for his life. The incidents are detailed in his handwritten notes (R2), particularly in Part "B" headed "Drug Duties" and Part "C" under the heading "Family Law", and also in his two witness statements of 4 May 2009 and 27 August 2010.

The Tribunal does not intend setting out in these reasons all of the evidence of such incidents. It will however highlight some evidence of the dangerous nature of some of the investigations Mr Ramsdale undertook.

56. Throughout much of his police career Mr Ramsdale was involved in investigating alleged crimes, undertaken surveillance duties or searching premises involving people who had a history of violence or who he believed were capable of violence. In many of the police operations in which he was involved Mr Ramsdale would draw and have at the ready his service firearm. He said at paragraph 21 of his handwritten notes entitled "Drug Duties":

"21. I learned early that you just had to expect trouble any time you knocked on the door of a house. I have had lead and been involved in dozens upon dozens of searches from drugs, fraud, Family Law for children and property. It came my absolute belief that at each search the following could happen:
i) That I could get killed gaining entry or during a search;
ii) That a member of the team I was in could get killed; and
iii) That an occupant could get killed".

57. Mr Ramsdale said he had been involved in many Family Law matters when children had been taken "under threat of male family members". He said in his handwritten notes at paragraph 7 under the heading "Family Law"

"They were always potentially dangerous situations and on approaching any premises great caution would be taken including checking the front windows for curtain movement and keeping away from the front of the door once you rang the bell. At the same time as being defensive you had to be ready to react instinctively and be on guard at all times. It was a situation where you had to be prepared to defend your life and at the same time be prepared to talk and advise the occupant. You had to act calm, be prepared to assist and advise while at the same time expect the worse (sic)"

58. He considered Family Law duties always to be potentially dangerous. In his statement of 27 August 2010 Mr Ramsdale said at paragraph 7:

"I was doing family law matters two or three times a week. I became convinced that all family law matters were dangerous duty and that normal placid people were prepared to do anything when it came to their home, children and wife. I firmly believe that there was potential for someone to be killed on any of these duties".

59. In the same statement Mr Ramsdale said at paragraph 12:

"The times I drew my firearm were wide ranging and varied, however I did not do it lightly".

60. He provided details in his handwritten notes of a number of incidents which caused him to feel threatened. An example is the incident described at page 10 of his statement of 4 May 2009:

"There were seven Police officer in the search including Tasmania Police officers. I found a number of large hunting knives in one bedroom and asked the occupant to go into the lounge of the house as we were going to conduct a search of the premises. We were in the process of trying to get all six of the occupants into the lounge area to read out the search warrant when fights started to break out between two or three of them. Some windows were broken in the rear porch and a large rock smashed into the wall of the lounge near me. I went to check and see how the other occupant was going in getting dressed and turned to walk towards the lounge. I turned and looked behind me and saw through the door one of the occupants with a rifle. I yelled that out and raced into the bedroom grabbing the barrel as he was cocking the action. While I was struggling with man and the rifle Senior Constable ........ came into the room and helped me disarm him. The rifle was unloaded, but it really upset me. We continued the search without finding anything and left after about two hours. The house was never properly secured as the occupant were shouting and screaming abuse all the time and fighting amongst themselves. We left the house with the rifle but no charges were ever made against the person with the rifle and I was never given a satisfactory explanation why".

61. In the same statement of 4 May 2009 Mr Ramsdale said:

"We mounted surveillance on various suspected drug dealers and gangs in Hobart and the North of the State. There were a number of occasions where we had firearms at the ready in case they were needed. I have also been involved in investigating a number of targets where counter surveillance was done and we were compromised. We frequently found people doing counter surveillance which made it harder to follow or target them. On one occasion going into a plantation in the bush in Southern Tasmania I noticed a green cotton hanging from bushes at about knee height. I realised that this was put across tracks in order to see if anyone had found the crop or was watching it".

62. He went on to state in the statement of 4 May 2009 on page 11:

"I undertook many searched under warrants for fraud and drug offences and mounted many surveillance operations. I gradually found that it was all wearing me out. I was becoming more apprehensive going to a property search and was breaking out in sweats as well as suffering from chest pains and numbing and tingling in both arms and my hands".

63. Mr Ramsdale referred to several incidents when he was working with the National Crime Authority when he believed his life was in danger. In his statement of 27 August 2010 at page 19 he said as follows:

"After a number of weeks conducting static surveillance of premises I was paired off with a detective sergeant from New South Wales to investigate the ....... group. Our directive was to identify all members of ....... organisation, identify all importations of narcotics he was involved with and identify and recover any money laundered through his organisation through proceeds of crimes act legislation. We had the use of an informant who was under witness protection. We were involved in debriefing and meeting the informant on many occasions both day and night. This was quite dangerous as his life was in grave danger. He eventually gave evidence while under 24 hour protection. While debriefing this man I firmly believe that our lives were in danger and I never took the same route home. I always did counter surveillance prior to going home and I told my wife how to use my .38 calibre Smith & Weston revolver. Whenever we met this informant we were armed, and at that time I was always armed. We met with this informant over a period of approximately eight or nine months".

64. At paragraph 23 of that same statement Mr Ramsdale said:

"While I was with the NCA there was a direct threat to kill police officers working with the NCA. During my time in the AFP I had 19 years of operational experience. I dealt with many criminals, suspects and witnesses. There were a number of times that my life was at risk while conducting investigations. I never dodged an issue and confronted many criminals with records of violence. I conducted surveillance , .... and executed search warrants"

65. In his handwritten notes Mr Ramsdale speaks of the investigation that he was involved in immediately prior to taking sick leave from 18 October 1993. He said at paragraph 57 of Part "E" of his handwritten notes:

"I found I was failing in these duties. I managed to start three investigations with the Army Military Police involving theft, and although I had successfully executed search warrants on two of them, I was unable to complete the third. We were changing 24 hour video tapes at an Army Store which was recording thefts of produce by two or three Army employees for use in their own business. We were changing the tapes late at night so we would not be detected. At the same time we marked a lot of containers of food with a black light pen which shows up under ultra violet light. I found on the Sunday evening I just could not go any further. I handed all the equipment to the Military Police officer to continue with and said I would contact his Sergeant on Wednesday.
On the Saturday and Sunday night, and indeed each of the previous nights we were changing the tapes at the Store I found my heart was pounding and chest aching. I was almost scared and as well my arms and hands were tingling and there was numbness also. I was experiencing sweats and panic and thought I was going to have a heart attack. I went to Dr Jolley and subsequently was given a certificate saying I was permanently unfit for duty".

66. In his statement of 27 August 2010 Mr Ramsdale explained that towards the end of his police career his health was deteriorating. He said in his statement that:

"32. Towards the end of my career I ended up very edgy and uptight and frequently experienced dizzy spells. I became anxious, sweated profusely and experienced panic attacks when something was happening, such as the lead up to the interviews, searches, giving evidence in court and surveillance. I found that I needed to go to the bathroom both before and after many of these situations and finally I just could not cope.
33. I continue to experience difficulty sleeping, difficulty concentrating and difficulty coping with any form of pressure. I become irritable and agitated and tearful at times. I find current affairs associated with police stressful".

67. There are a number of statements from Mr Ramsdale which explain to some extent the effect on him of the various stressful incidents. It is also possible to reasonably infer from his evidence that he believed his life was in danger and that he was fearful. The Tribunal is satisfied on the evidence that Mr Ramsdale did perceive that he was in many life threatening situations during his extensive police career.
68. In his witness statement of 4 May 2009 Mr Ramsdale comments as follows:

"I found that I was becoming increasingly nervous and breaking out in sweats whenever a confrontation such as executing a search warrant, dealing with a family law matter or interviewing witnesses or suspects occurred". (Page 7, paragraph 5)

And:

"My anxiety levels started to increase markedly with drug searches over the years and I was gradually finding it harder to cope with things both at work and at home". (Page 10)

And:

"The duties that I was doing combined with this issue were causing me a great deal of distress. I was also experiencing problems with dizziness and found that I was walking distances of 200 metres and 300 metres and not being able to recall having done so or walking past where I was supposed to be going without realizing. I also found I was walking to places in the city to do something and would forget what it was that I was going to do". (Pages 13 and 14)

69. At page 9 of his statement of 27 August 2010 Mr Ramsdale said:

"Towards the end of my career I ended up very edgy and uptight and frequently experiencing dizzy spells. I became anxious, sweated profusely and experienced panic attacks when something was happening, such as the lead up to the interviews, searches, giving evidence in court and surveillance. I found that I needed to go to the bathroom both before and after many of these situations and finally I just could not cope".

70. It is true that Mr Ramsdale did not explain in great detail the actual impact on him of the various stressful incidents that he had experienced during his police service. This is however consistent with the Tribunal's impression of him as a man who is naturally quite reluctant to speak openly about the sense of anxiety and fear he experienced at the time of the incidents.

EVIDENCE THAT THE APPLICANT'S WORK AS A POLICE OFFICER CAUSED HARM TO HIS HEALTH

71. Mr Lenczner submitted that prior to Mr Ramsdale's claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 the evidence pointed to his Vietnam war service as the sole cause of the applicant's ill health.
72. Prior to 1994 there were very few indications in contemporaneous records that Mr Ramsdale's police work was causing him stress or otherwise adversely affecting his health. According to the recorded information for much of his service with the AFP up until that point in time when he took sick leave in 1993 he appeared to be carrying out his duties without undue strain and in a reasonably competent manner. After all, he managed to achieve promotion to Detective Sergeant, and was appointed on his own application to the National Crime Authority, an organisation charged with investigating very serious criminal activity including organised crime.
73. Dr Burges Watson said it was not uncommon for people to continue to work even though they are suffering PTSD. He said that revealing symptoms in the course of a career can place the person's employment in jeopardy. He said:

"... I know dozens of policemen who have worked well for years with PTSD, and have kept it well under their belts, or under their hats or whatever you'd like to say; because to say that you've got symptoms is the end of your career". (Transcript page 221)

74. Not all of Mr Ramsdale's medical records are available and those that were tendered are, as is often the case when notes have been written by busy medical practitioners, quite difficult to read. There are just two references in the notes of Dr Ross, who was then Mr Ramsdale's general practitioner, to the applicant experiencing pressure associated with his work.
75. There is a reference in Dr Ross' notes of a 1987 consultation to "chest pains" and "... a lot of pressure at work ...". This is a clear indication that he believed his health may be affected by the pressure he was experiencing at work.
76. In Dr Ross' notes of September 1988 the following statement appears:

"Going to Sydney 2 years NCA. Feels stress has decreased with impending change of job".

One can infer from that comment that Mr Ramsdale had been suffering stress at work for a period of time.

77. Mr Ramsdale had various visits to general practitioners over the years but it was not until very early in 1992 that his health deteriorated to the point where he sought assistance from the Vietnam Veterans' Counselling Service. Dr Burges Watson in his report of 15 June 1992 said as follows:

"I gather he first went to see Dr Jolley "in desperation" in January or February of this year - largely at his wife's insistence and has since been seeing Simon Webb at the Vietnam Veterans' Counselling Service".

The Tribunal considers it to be of significance that Mrs Ramsdale had insisted that the applicant should seek professional assistance for his deteriorating health.

78. In his report of 15 June 1992 Dr Burges Watson said as follows:

"Since during two years of National Service he served in armoured personnel carriers in Vietnam from early February '69 to December '69, there is no doubt that the primary cause of his PTSD is his war service. Even though he didn't describe in the time he was with me any particularly horrific experiences, his duties generally were sufficient for his life to be under threat for a large amount of the time that he was in South Vietnam and there have been no subsequent experiences - at least that I could discover - to account for his current symptoms. Indeed it is difficult to see why the symptoms have become worse recently but I suspect, like many other servicemen, that he probably started to deteriorate after attending the welcome home marches. He attended both the march in Melbourne and the march in Sydney, finding the latter far more emotional".

Dr Burges Watson's opinion then was that Mr Ramsdale was suffering PTSD which had been caused by his Vietnam War experiences.

79. Three days earlier, on the 12 June 1992, Dr Burges Watson had seen Mr Ramsdale and had taken notes of the interview. On page 2 of the handwritten notes it is recorded "no pressure at work". That response obviously followed an inquiry from Dr Burges Watson.
80. It is noted that Mr Ramsdale had applied on 27 May 1992 to the Department of Veterans' Affairs for a disability pension. On 30 June 1992 Mr Ramsdale was referred to Dr Wilson a psychiatrist in relation to his application for a disability pension. Dr Wilson confirmed the diagnosis of PTSD, expressing the view that it was "delayed type". Dr Wilson described the symptoms and said "... not associated with his work as Federal policeman".
81. A turning point in Dr Burges Watson's opinion about the cause of Mr Ramsdale's ill health appears to be the applicant's admission to the Hobart Clinic. He was an in-patient at the Hobart Clinic from 12 August 1994 until 2 September 1994 (he was also admitted to the Clinic for a few days later in 1994). Dr Burges Watson asked Mr Ramsdale when he was at the Hobart Clinic to write out in detail any stressors he suffered in Vietnam and also during his police service. Dr Burges Watson said:

"... there is some therapeutic value in as much, until it's all out in the open, you don't really know what you're dealing with".

82. After considering the evidence, including evidence of Mr Ramsdale's nature and character, the Tribunal is satisfied that Mr Ramsdale is a person who has tended not to want to admit to suffering ill-health as a result of either his war service or his lengthy police service. Dr Burges Watson said in his oral evidence:

"... basically the characteristic was that the veterans would deny that they had any problems". (Transcript page 191)

83. It was only after Mr Ramsdale had written down details of the stressful events experienced in the police force that Dr Burges Watson recognised that Mr Ramsdale's police service had involved many life-threatening experiences. He expressed the opinion in his report of 17 October 1994 that:

"Thus, in summary, Mr Ramsdale presents a very typical picture of a Vietnam veteran with Posttraumatic Stress Disorder with a substantial component of the disorder being the result of his experiences in South Vietnam. Initially his experience in the army and South Vietnam may well have helped him cope with his duties in the Police, but in the end both sets of experiences combined to determine a totally incapacitating Posttraumatic Stress Disorder which profoundly affects his social and personal life as well as his ability to work". (Page 68 of Supplementary T Documents)

84. As previously indicated Mr Ramsdale has detailed many stressful experiences during his police service. There were instances when he perceived his life to be under threat. On some of these occasions it can be said that there was, objectively, potential danger to life. There is evidence that he often feared for his life including in Family Court searches, drug investigations and during his service with the National Crime Authority.
85. Mr Ramsdale's health deteriorated very seriously in the early weeks of 1992. It was largely at his wife's insistence that he sought medical help and counselling. This reluctance to seek assistance is indicative of his nature. There was a reluctance to talk about Vietnam until it all became too much for him and he sought assistance. Similarly it was not until he was so ill that he needed to be hospitalised in a psychiatric clinic that he opened up and detailed to Dr Burges Watson in his frank handwritten notes all the stressors suffered in his many years of police service which he described as "hazardous police duties".
86. Although Mr Ramsdale completed his Vietnam service as long ago as 1969 the serious adverse impact of that service on his health did not become evident until 1992. When it became apparent to Mr Ramsdale and to the medical professionals treating him that he was suffering PTSD caused by his war service, that particular cause became the focus. Later when Mr Ramsdale and Dr Burges Watson and other medical practitioners became aware of the stressors experienced in his police service and that they were a causative factor in his ill health then the focus shifted. What was said by Mr Ramsdale to his medical practitioners at the time is obviously a factor to be taken into account but the central question to be determined by the Tribunal is did Mr Ramsdale suffer serious stressors, including life threatening events, during his police service and have those stressors contributed in a material way to an aggravation of his pre-existing Vietnam war caused PTSD?
87. The Tribunal will now consider the opinions of the various medical practitioners who have issued reports or have given oral evidence to the Tribunal.

THE MEDICAL EVIDENCE

88. The Tribunal concludes on the evidence that Mr Ramsdale did experience many serious stressors during his employment with the AFP as detailed in his handwritten notes under the hearing "Hazardous Police Duties". The Tribunal accepts the account given by Mr Ramsdale in those handwritten notes to be honest and accurate.
89. Of all the medical witnesses who gave evidence at the hearing the Tribunal prefers the evidence and opinions of Dr Burges Watson. The evidence shows that he is an acknowledged expert on PTSD. He was treating Mr Ramsdale for a considerable period and in the Tribunal's view has exhibited a very good understanding of Mr Ramsdale's history including his Vietnam war service and his service with the AFP and also of the symptoms of his illness. Importantly, although a treating psychiatrist, he gave his evidence in an impartial and objective manner.

From that point in time when he became aware of the many stressful and life threatening events experienced by Mr Ramsdale during his employment with the AFP Dr Burges Watson has held strongly and consistently to his view that Mr Ramsdale's underlying PTSD caused by his war service had been aggravated by his later stressful police duties.

90. The psychiatrist called by the respondent, Dr Sale, is also a most experienced psychiatrist who was engaged by the respondent to provide a medico-legal opinion. Initially preferring a diagnosis of a generic anxiety disorder Dr Sale was ultimately willing to concur with the diagnosis of PTSD, which had been proffered by the other psychiatrists. He said "they include Dr Burges Watson, an expert in the field".
91. Dr Sale expressed the opinion that the incidents during Mr Ramsdale's police career were not sufficiently threatening to cause a permanent worsening of his underlying condition. He said in his detailed report of 18 August 2008 (at page 13):

"For someone involved in law enforcement, the experiences described by Mr Ramsdale are not exceptional".

Dr Sale said at page 14 of that report:

"If it is assumed that Mr Ramsdale emerged from his Vietnam service with some form of anxiety disorder, perhaps Posttraumatic Stress Disorder, then this is likely to influence his capacity to cope with various other events in his life, both occupational and others. In short, an individual who is chronically anxious will be less resilient, less able to regulate affect, concentrate poorly under pressure, and perhaps more prone to perceive circumstances as threatening or overwhelming. This formulation might help explain why Mr Ramsdale first started to experience anxiety symptoms when moved from Hobart Airport to CIB.
The question then arises as to whether police service was stressful to a degree that aggravated Mr Ramsdale's underlying problems, or whether it was perceived as stressful because of those underlying problems".

He went on to express the following opinion (at page 15):

"Intermittent anxiety problems presenting as symptoms such as chest pain and dizziness, but his major difficulties appear to have escalated from around 1991. Involvement in Vietnam related functions appears to have been a factor in this escalation. Another important issue is the effect of longstanding alcohol abuse and the effect this would have had upon his general health and function. Therefore, I believe that the probability is that this late escalation in difficulties represents the natural progression of a chronic Posttraumatic Stress Disorder complicated by alcohol abuse".

92. Dr Sale is of the opinion that the various incidents which occurred during Mr Ramsdale's AFP service, including the secondments, were not of the quality necessary to cause a permanent worsening of this condition. On the other hand three other psychiatrists believe they were of that quality and in particular Dr Burges Watson with his in depth understanding of Mr Ramsdale and his recognised expert knowledge of PTSD also so believed. The Tribunal accepts Dr Burges Watson's opinion that Mr Ramsdale's experiences in the AFP were sufficient to cause a permanent worsening of his condition.
93. Dr Reid agreed with Dr Burges Watson that Mr Ramsdale had suffered, as a result of his police duties an aggravation of his war caused PTSD. Dr Moore went further and said in his view the police service had caused a new and distinct PTSD. The Tribunal prefers the view of Dr Burges Watson that an aggravation has occurred rather than the new PTSD hypothesis proposed by Dr Moore. Dr Wilson, another retired but experienced psychiatrist was asked to give his opinion in relation to an application by Mr Ramsdale for a Department of Veterans' Affairs disability pension. The focus of Mr Ramsdale and Dr Wilson was clearly on the question of the Vietnam War and whether or not the war had caused Mr Ramsdale to suffer PTSD. Dr Wilson did not then have available to him any detailed information about Mr Ramsdale's police service. He obviously did not have a copy of the handwritten notes prepared by Mr Ramsdale about his experiences during his police service because those notes were not prepared until 1994, some two years after the interview with Dr Wilson. Dr Isles provided a useful history but when it came to a diagnosis of Mr Ramsdale's condition he relied upon the specialist knowledge of Dr Burges Watson.
94. Dr Sale agreed that when it comes to an aggravation of PTSD it is not necessary for the Tribunal to be satisfied that the criteria applying to the underlying condition as set out in DSM-IV do exist.

CONCLUSION

95. As explained in paragraph 23 above to establish the existence of a permanent aggravation it is necessary for the Tribunal to be satisfied that the pre-existing condition has been made worse and that the applicant's employment contributed in a material degree to that worsening.
96. Mr Lenczner for the respondent argued that Mr Ramsdale's ill health including the various symptoms he has suffered during and since his police career were solely manifestations of his existing war caused PTSD and none of the events that occurred during his police service was sufficient to contribute to any aggravation of his PTSD. Dr Sale was supportive of that viewpoint. But the overwhelming preponderance of the medical opinions before the Tribunal supports the view that the stressful incidents in his police service were indeed sufficient to help cause an enduring aggravation of his pre-existing PTSD.
97. As the medical evidence indicates Mr Ramsdale was always going to be in a vulnerable position if after serving in Vietnam and suffering PTSD as a result of his war service he then engaged in a stressful occupation. Mr Ramsdale's employment in the AFP was certainly a stressful occupation.
98. Dr Burges Watson said that events during Mr Ramsdale's police service contributed to his symptoms "in a significant ... materially significant way". Dr Reid also said that traumatic events during his time in the police force heightened symptoms of PTSD.
99. The Tribunal is satisfied that Mr Ramsdale's PTSD symptoms were made worse and heightened by his police service including recurrent disturbing dreams, difficulty in concentrating, irritability, anxiety, poor sleep patterns, panic attacks, unable to take pressure and becoming socially withdrawn and detached.
100. Although other factors may have played some small part in the worsening of his condition, including the Vietnam veterans' reunions and marches, the Tribunal is satisfied that Mr Ramsdale's employment in the AFP played a very significant role in his PTSD becoming worse. The contribution to this aggravation caused by his police service was much more than minimal. The level of contribution satisfied the meaning of material degree suggested in Comcare v Sahu-Khan.
101. The Tribunal therefore finds that the applicant's police service did contribute in a material degree to an aggravation of his pre-existing PTSD within the meaning of the Act. That aggravation occurred on or about 18 October 1993.
102. The Tribunal finds on the medical evidence and other material before it that the applicant has continued, since 14 May 1995, when he retired from the AFP, to suffer an "incapacity for work". The respondent is therefore liable under section 14(1) of the Act to pay compensation to the applicant in accordance with the provisions of the Act.

DECISION

103. The decision under review is set aside and the matter remitted to the respondent with the following directions:

(a) The respondent is liable to pay compensation to the applicant in accordance with the provisions of the Act in respect of an injury, namely an aggravation of his pre-existing PTSD, suffered by the applicant on or about 18 October 1993.

(b) The applicant is incapacitated for work as a result of the said injury and has been so incapacitated since 14 May 1995.

(c) The amount of compensation payable to the applicant is to be assessed.

COSTS

104. This decision is one to which section 67(9) of the Act applies. Therefore it appears that the applicant is entitled to costs. I will however hear counsel further as to costs if an application is made within 14 days. If no application is made within that time I will order that the respondent pays the applicant's costs of these proceedings as agreed or taxed and that order will be incorporated in this decision.
     

I certify that the 104 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)

Signed: R Hunt (Administrative Assistant)

Date/s of Hearing 31/8/10, 1, 2, 22/9/10, 14, 15, 16, 17/12/10

Date of Decision 31 January 2011

Counsel for the Applicant Mr Richard Grueber

Solicitor for the Applicant Ogilvie Jennings

Counsel for the Respondent Mr Joe Lenczner

Solicitor for the Respondent Mr Ray Ternes, Sparke Helmore