This is an application for review of two determinations made by a delegate of the Commissioner for Employees' Compensation on 9 October 1985 pursuant to the Compensation (Commonwealth Government Employees) Act 1971 ("the Act"): the first determined pursuant to sub-ss.29(1) and (2) of the Act that the applicant suffered from a disease, namely adjustment disorder, to which his employment was a contributing factor and that the Department of Defence was liable to pay compensation up to and including 11 April 1985 (T34/92); the second determined pursuant to sub-s.40(1) of the Act that the delegate was unable to find that any loss of capacity of the applicant to engage in sexual intercourse was due to employment with the Department of Defence (T35/93).

2. The hearing of this application progressed over seven days. The applicant conducted his own case and the respondent was represented by counsel, Mr Cameron. Apart from the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (the "T documents"), there was oral evidence and some 43 exhibits were tendered. The applicant gave oral evidence and called Dr Depasquale and Dr Hoff, both psychiatrists. The respondent called Dr Kutlaca, also a psychiatrist, the applicant's former wife and Warrant Officer Whitman.

3. The applicant's major submission is that he suffered from a psychiatric condition (personality disorder and/or an adjustment disorder or reactive depression) as a result of his employment in the Australian Army. In particular, he alleges that during his employment in the Army which began on 14 October 1980 and ended with his discharge on 13 July 1982, he was subjected to physical, emotional and sexual harassment because of his race, creed and colour. He alleges that this treatment gave rise to his psychiatric condition which has incapacitated him from work not only up to 11 April 1985 (being the date when weekly payments of compensation ceased) but also to the present time. These allegations relate to the claim for compensation which he made on 4 September 1984 (T11/19).

4. The second submission to which the applicant accorded less weight, was an allegation of loss of a normal sexual life due to the failure of the Department of Defence to inform him appropriately of the risk and the protection required to avoid contacting Venereal Herpes Simplex II. This was the subject of his second compensation claim (T10/16).

5. The respondent's contention with regard to the major claim, is that the applicant has not been incapacitated for work since 11 April 1985 due to any psychiatric condition arising out of his Army service. The respondent's submission is that whilst liability to pay compensation was accepted by the Department of Defence for a period up to 11 April 1985, on the material before the Tribunal, there is doubt as to whether the applicant ever suffered any incapacity due to a psychiatric condition resulting from Army service and that such psychiatric condition as the applicant may have is more likely to be due to other factors unrelated to his employment. Further, even if the applicant did suffer from such psychiatric condition resulting from Army service, he has not been incapacitated for work since 12 April 1985 as a consequence of that condition.

6. As to the second compensation claim, the respondent alleges that any loss of capacity of the applicant to engage in sexual intercourse which may have occurred as a consequence of contracting Venereal Herpes Simplex II, is a result of the applicant's own private activities unrelated to his employment.

7. Before setting out the relevant findings of fact, the Tribunal considers it appropriate to make the following preliminary comments.

8. Much of the evidence adduced at the hearing concerned matters affecting the applicant's credibility and to matters which the respondent alleged were evidence of the applicant's manipulation to support and improve his case. For reasons which will become apparent, we have not seen the need to record in these Reasons the seemingly endless number of incidents which have occurred during the life of this applicant. The applicant, over his 32 years, appears to have been involved in more unusual circumstances and relationships than occur to most people in a lifetime. For these reasons, it is important to bear in mind the main issues and not to be distracted by the detail of the applicant's life history. In addition, we specifically emphasise that the findings of fact contained hereunder are findings which we make only on the balance of probabilities. Many of these findings are not verified and their accuracy is doubtful. We have been, however, prepared to give the applicant the benefit of the doubt as to parts of his testimony on which these findings are based.

9. The applicant was born in Nepal on 24 April 1955. He was born a member of the R family which prior to 1950 was the ruling family in Nepal. He is still closely connected with the Nepalese Royal Family. His father was a Ghurka in the Nepalese Army and rose to the rank of Brigadier-General and Director of Military Intelligence in Nepal. His father had a drinking problem and physically abused the applicant and other members of the family. The applicant was initially sent to a private Jesuit boarding-school where he was also physically and sexually abused. He left that school and completed his secondary schooling in a government school. The applicant entered the Nepalese National University in 1973 and completed two years of a Bachelor of Science degree. In 1974, whilst still at university, the applicant accepted work as an undercover agent, having been approached by the American Drug Enforcement Agency in Nepal.

10. In 1975, the applicant left university and continued working as an undercover agent whilst employed in a clerical capacity for the Save the Children Fund in Nepal. His work as an undercover agent required him to infiltrate the "hippie" community and his interest and skills in mountaineering and trekking were utilised to make contact with those groups.

11. During 1976 and 1977, the applicant worked in the casino in Nepal still as an agent for the American Drug Enforcement Agency.

12. In December 1976 he first met the woman who later became his wife, Rosalind R ("Mrs R"). They met in New Delhi when she was aged 20 years and he was 21. Mrs R had just completed her student teachers course and was holidaying; she returned to Adelaide in January 1977.

13. During 1977, the applicant and Mrs R wrote to each other and she returned to meet the applicant in New Delhi in December 1977, arriving just prior to Christmas. They married in Nepal three weeks later on 13 January 1978. The wedding had not been planned in advance and all arrangements including the wedding took place on the one day. Mrs R returned to Australia in time to commence teaching. She did not initially tell her parents she was married. Following the marriage, the applicant's father disinherited him.

14. On 9 April 1978, the applicant migrated to Australia. Initially he lived with his wife at her parents' house. Even within the first three weeks of their living together, there were problems between them. These problems revolved around the applicant not liking his wife's friends, he did not wish to communicate with people and he resented his wife visiting her friends as well as her going anywhere without him. Because of these difficulties, it was uncertain as to whether a civil marriage ceremony planned for 6 May 1978 would proceed. The ceremony proceeded after friends arranged a meeting to enable them to temporarily overcome some of these problems.

15. From the time when the applicant came to Australia, his wife supported him on her income as he was unable to obtain employment. He had no relevant employment skills.

16. In June 1978, the applicant began a commercial pilot's licence course. This was financed largely by the applicant's wife who raised various loans up to $5,000 in total. At least $3,500 of this money was used to pay for the applicant's training course in addition to other sums which she paid from her teacher's salary.

17. From about October 1978, the applicant obtained casual employment teaching yoga for two institutions. Both of these jobs ceased because of differences of opinion which the applicant had with his employers.

18. On 31 January 1979, the applicant applied for a job at a restaurant. He was employed for only one week due to his inexperience as a waiter.

19. In mid 1979, the applicant undertook a waiting course and thereafter obtained various waiting jobs of a part-time casual nature. This employment only lasted a few months at a time and ceased mainly due to differences which the applicant had with his employers.

20. From the commencement of their marriage, the applicant and his wife had significant financial problems largely because the applicant's employment was limited and sporadic and much of their money was used to finance his pilot's course. In addition, the applicant appeared to have had expensive taste and prevailed upon his wife to buy him luxury items, in particular an expensive watch and a leather briefcase ostensibly for his flying require ments.

21. From approximately April 1979 until the end of 1979, the applicant worked with his brother-in-law tomato farming and received a proportion of the profits.

22. In May 1980, the applicant's wife became aware that she was pregnant. This was a shock to both of them as they had not planned to have a child until the applicant had finished his commercial pilot's course. There were immediate financial implications as his wife would be obliged to give up her job for a period of time to have and care for the child and the applicant had no full-time employment.

23. The relationship between the applicant and his wife continued to be difficult. The applicant appeared to dislike people, avoided company where he could and would only visit two of his wife's friends. If his wife's friends visited he would leave and go into his room for several hours. He was also critical of his wife's parents including matters related to his mother-in-law's cooking. The applicant resented what he perceived to be his wife's encouragement of her former boyfriends and also suggested to her that she was not pregnant by him; in our view, neither of these perceptions was correct. The applicant also appeared sensitive to what he perceived to be racist attitudes or remarks. The applicant was also un predictable in his responses and there was considerable tension between him and his wife. Mrs R gave evidence that she attributed many of the applicant's difficulties to "culture shock".

24. In addition to these general problems in their relationship, two significant incidents occurred, the details of which need not be expanded upon. The applicant threw a cabbage at his wife on one occasion because of his dissatisfaction over having cabbage for tea. On another occasion, he threatened his wife with a kukuri knife which we accept was a ceremonial knife but was drawn from its encasement during a verbal exchange.

25. The applicant gave up his commercial pilot's training course on 20 July 1980. During the period of this course, the applicant had two changes of instructor, both of which occurred after the applicant accused the particular instructors of racism (see Exhibit R21). The applicant, however, said that he gave up flying as a result of his wife's pregnancy and the need to support his family. As he said (p 7 of the transcript), "....I sacrificed my flying desires for this daughter of mine..." His wife, on the other hand, gave evidence that he gave up flying because she was no longer able to pay for his flying course due to her impending childbirth. Exhibit 21 indicates that on 20 July 1980, the applicant's then instructor, Mr Duffy, refused to allow him to continue training with his company, Aircare. Binding those threads together, we consider that there were probably several factors giving rise to the applicant's giving up the flying course and they included his wife's pregnancy, the instructor terminating his training with the company and also that he would have to obtain some employment in order to maintain himself and his family.

26. The applicant gave evidence that, when considering his options for future employment, which were limited because of his lack of training:

"I thought, what could I do? All I can remember was

that my father and forefathers have come from

aristocratic background. In 1950 they were the ruling

class of Nepal and the (R's) have always been helpful

to the need of the Commonwealth, as history shows.

Whenever the British needed assistance, whether they

be in India or in the Second World (War), the (R's)

have provided troops to the Commonwealth. That was a

civilian loyalty, but suddenly I felt that it was in

my blood."

(p 8 of the transcript)

He then spoke with his wife and told her that he was going to join the Australian Army. His wife reacted against his suggestion as she did not think he would be able to cope with Army life having regard to his personality, his being easily antagonised, and his inability to take orders. His wife indicated that the applicant continually gave orders and ultimatums to her and that he would not react favourably to orders coming from others.

27. Nonetheless, the applicant joined the Army against his wife's wishes and began training on 14 October 1980. His initial training was in New South Wales for a period of sixteen weeks. During that training he was called names such as "yellow peril", "Viet Cong", "monkey", "black cunt", "gherkin" and similar. He felt alienated. Soldiers did not talk with him partly because they found his accent difficult to understand and in consequence he made no friends. An incident occurred in which a two litre can of orange juice was thrown at him just prior to his passing out parade on 4 January 1981. The circumstances of this incident tend to suggest that the can was thrown at him recklessly, as it had been to other soldiers who were also hit, but as a consequence the applicant was cut under his eye causing him to wear a bandage on his passing out parade which interfered with the passing out activities on that day. The applicant interpreted that incident as a specific assault on him because of his race, but in our view, it is more likely to have been due to general carelessness and not specifically intended to single him out. In the circumstances, however, we can understand why the applicant did perceive that he had been singled out.

28. The applicant alleges that in December 1980 he began to feel what he later recognised as stress symptoms due to the harassment which he received in the Army. He described night mares, feeling socially withdrawn, lazy, defensive and having breathing problems.

29. After his initial training, the applicant went to Bandiana in Victoria where he became a trainee storeman between January 1981 and April 1981. The applicant alleged that during that time he was also punched and kicked because of his colour and race and he reported one such incident to the adjutant and the soldiers responsible were reprimanded. We have no reason not to accept that evidence.

30. The applicant's daughter was born on 31 January 1981. During the period of his training up until the time his daughter was born, the applicant and his wife saw little of each other. The applicant went AWOL on one occasion in order to see his wife and constantly rang her to see if she could get a certificate from a doctor saying that the baby was coming early so that he could get leave. He also admitted that he had had a few sexual encounters when taking leave during his days of training. In his initial evidence, he denied such sexual encounters (p 126 of transcript), but later he admitted them (p 379 of transcript) and volunteered the explanation that such conduct was expected by his fellow soldiers and also he was of "warrior" class in Napalese society and such encounters were permissible.

31. The applicant was posted to Woodside camp in South Australia, and was under the command of Major Blackwell. The applicant and his wife took up married quarters at the camp site. The applicant alleged he was called racist names as well as Christian names which were insulting to him, particularly by the soldiers with whom he worked in the store. He also gave instances of bashings which he reported. Warrant Officer Whitman gave evidence that he heard rumours that the applicant had been bashed and made investigations but could not verify the accuracy of the rumours. He also gave evidence that the applicant may have complained of certain conduct to him (although he could not recall) but that he probably assumed such incidents to be scuffles between soldiers rather than assaults. He also gave evidence that objects were thrown around the storeroom and that it was difficult to say whether the throwing was careless or deliberate. He also accepted that the applicant may well have been called various names as he had alleged. In evaluating this evidence, we accept that the applicant was called racist and Christian names and was punched, hit and knocked on various occasions by fellow soldiers and that this was probably associated with his race, colour or creed. He also visited the Army doctor frequently complaining of minor symptoms of headaches and dizziness.

32. The applicant gave evidence that Major Blackwell appreciated that he was being harassed by the younger soldiers and took measures to speak with the soldiers in order to prevent recurrences. The level of harassment thereafter "subsided" (pp 11-12 of the transcript).

33. In February 1981, the applicant's father in Nepal became ill and in June 1981, his father's condition worsened and the applicant wished to see him. This visit required the applicant's wife to apply to extend her loans to finance the travel. The applicant was granted special extended leave of 2 - 3 weeks to enable him to visit his father in Nepal. On the way to Nepal, the applicant had a stopover at Bangkok and, as a result of a casual sexual encounter, contracted Venereal Herpes Simplex II.

34. Whilst in Nepal the applicant had an emotionally difficult and stressful reconciliation with his father (pp.30-32 of the transcript). He returned to Adelaide on 9 July 1981.

35. Within a short time of the applicant returning to Adelaide, it was noted that there was a drop off in his work performance as a storeman and an increase in absenteeism for duty or parade. The applicant was having very painful symptoms because of his Herpes condition which he had not disclosed. His stress symptoms continued and he felt "depressed".

36. The applicant alleges that following his return to Adelaide, he became less communicative with his wife, partly as a result of the stress which had built up because of harassment at his employment about which he did not inform his wife because he thought she would think less of him. Further, he had contracted Herpes Simplex II and he did not wish to tell his wife, particularly because of the circumstances in which he had contracted it.

37. In mid July 1981, the applicant refused to go to the wedding of his brother-in-law with whom he had done tomato farming. Instead, the applicant told his wife that he was required to work that day although it later became clear to her that the applicant had made an arrangement to go out with a male friend instead of going to the wedding. The applicant's wife was most upset by this event.

38. On 27 July 1981, the applicant's wife left him. Mrs R gave evidence that she did not leave because the applicant's conduct had worsened but rather, his conduct had remained about the same throughout their marriage. She decided that she could no longer stay for the sake of her young daughter whom she did not wish to be exposed to the type of relationship which existed between herself and the applicant.

39. Early in August 1981, the applicant began to have panic attacks and on 3 August 1981 he was admitted to the Royal Adelaide Hospital upon referral by a friend who was a general practitioner. The treating medical officers at the Royal Adelaide Hospital formed the view that the applicant had a sociopathic personality disorder (T20/45). He remained in hospital until 5 August 1981. The applicant was then admitted to the Daw Park Hospital on 8 August 1981 until 10 August 1981 due to what was thought to be an overdose of medication (T17/31). On 12 August 1981, the applicant received domestic counselling (T3/4) and on 19 August 1981, he was referred to see Dr Hoff who was a psychiatrist employed by the Australian Army.

40. On 1 September 1981, Family Court proceedings were commenced. In early September 1981, the applicant was still receiving domestic counselling from Dr Hoff.

41. The applicant was posted to a camp in Queensland in early September 1981. During the first week of September 1981 his father died, but the applicant was not told of the telegram dated 10 September 1981 informing him of that event, until the end of that camp in October 1981. This was a matter of grave concern to the applicant because there are Hindu rituals which a first-born son must fulfil and the applicant felt deprived from having fulfilled his filial and religious obligations. Upon being informed, he shaved his head and performed certain rituals.

42. The applicant gave evidence that he began drinking alcohol heavily in October 1981. He was still receiving domestic counselling from Dr Hoff on 21 October 1981 and 18 November 1981.

43. In late November 1981, Major Blackwell left the Woodside Camp and was replaced by Major Watson. The applicant gave evidence that Major Watson, who was of Chinese extraction, did not give the applicant the same support as had Major Blackwell. The applicant explained this on the basis that Major Watson did not wish to be seen as protecting another racially different person as this may appear to his subordinates as favouritism and have undermined him in their eyes. We are unable to say whether this is true or not but certainly after Major Blackwell left, the applicant encountered more difficulties. The applicant was first charged with being AWOL at the end of December 1981 by Warrant Officer Whitman for failing to appear on parade. This charge was laid after numerous instances of absenteeism had been noted by Warrant Officer Whitman. The applicant alleges that he was late for parade because he had gone to get a prescription. He did not defend the charge, although he complains that he was not adequately informed of his rights.

44. In February 1982, a second charge was laid against him for being AWOL and giving a false account. The applicant alleged that his absence was due to car trouble. As to the circumstances in which this false account was given, there is a dispute on the evidence between Warrant Officer Whitman and the applicant. Either version leads to the applicant's account being false. The applicant alleges his real reason for absence was due to illness but he also indicated he was drinking heavily at this time.

45. In February 1982, the applicant was sent a letter stating that he was maintaining unsatisfactory performance of duties (T4/5).

46. In the first week of March 1982, a third charge was laid as he was found sleeping when he should have been on duty.

47. In March 1982, Dr Hoff concluded that the applicant was suffering from a personality disorder with a reactive depression. He was admitted to the Daw Park Hospital on 20 March 1982 for a period of three days at which time he disclosed for the first time details of problems relating to the Army and, in particular, he revealed that he was suffering from Herpes (T17/40). He was readmitted to the Daw Park Hospital from 26 March 1982 until 31 March 1982.

48. On 9 April 1982, whilst still absent on sick leave, the applicant went to Nepal to live with his mother. He gave evidence that he went there as he knew his discharge was going to be recommended and he wanted to avoid military prison. On 8 July 1982, the Department of Defence wrote to the applicant in Nepal advising him that he was being discharged effective from 13 July 1982 because:

"...retention of (him) in the Army is not in the

interest of Australia or the Army"

49. The applicant remained in Nepal where he continued to receive medical treatment for his Herpes condition.

50. On 14 December 1982, the applicant returned to Australia and applied for Unemployment Benefits. He then moved to Queensland where he had been offered work on a farm working with horses and pigs. The applicant performed labouring and tractor driving work for about two months for which he was not remunerated; in fact, he gave the farmer his Unemployment Benefit money on the understanding that it would be repaid. This did not occur and the applicant left and travelled to Brisbane.

51. On arrival in Brisbane he applied to the Queensland Police Force for employment. His application for employment was refused. However, he gave evidence to the effect that in view of his past undercover experience he was requested to work as an undercover agent for the Australian Security Intelligence Organisation (ASIO) through the Queensland Police and he was requested to infiltrate the Ananda Marga sect. There is no evidence to verify the authenticity of this infiltration but in any event, for a period of four months, he lived with the Ananda Marga and a diary apparently records his meetings with ASIO agents.

52. The applicant said that whilst with the Ananda Marga he was "living a double life" and that he found it hard to meditate, which is an essential component of Ananda Marga life. He said that he thought the Ananda Marga believed he was a spy and they were following him wherever he went. His stress symptoms continued. Whilst with the Ananda Marga he worked as a cook from time to time including at an international meeting of Ananda Marga held interstate.

53. The applicant ceased residing with the Ananda Marga after he met a man who was sponsoring a wrestling team from India and who offered the applicant accommodation at his house until he found a place of his own. The applicant alleged that he ceased working with the Ananda Marga after an agent from ASIO threatened that he had "double-crossed them" because the Australian Federal Police Intelligence had told them that the applicant had "jeopardised their operation" (p 53 of the transcript).

54. The applicant was charged with several counts of stealing and one of false pretences. The applicant's evidence on these matters was most confusing and the Tribunal is of the view that the most reliable evidence is the certificate of convictions contained in Exhibit R4. That certificate indicates that the applicant pleaded guilty to false pretences in relation to a cheque in the account of "The Pewter Club". The other convictions relate to stealing a sum of $230, a sum of $20 and two cheques from the man with whom the applicant was staying. The applicant suggested in his evidence that this was a "frame-up" but at the same time, conceded he did not know whether or not he had in fact been guilty of the offences. The Tribunal finds difficulty accepting this evidence and considers that more probably the applicant was guilty of the offences to which he pleaded, and that these offences were related to his endeavours to get sufficient money to leave Queensland to return to Nepal.

55. The applicant was fined in relation to all offences. The applicant defaulted in the payment and therefore was imprisoned for a period of two months ending on 12 January 1984.

56. Upon release from prison, the applicant sought employment. He gave evidence that he looked for a job in two or three restaurants but that:

"... I was always followed by the Special Branch

member, and at about that time I was going to get job

they would go and tell the employers that I had been

convicted and been in jail and I was not trustworthy

and things like that. So I had to keep on moving."

(transcript, p 57)

57. The applicant applied for an Invalid Pension on 9 February 1984 (T7/9) and was sent for a medical assessment for that pension at which time he was regarded as suffering from anxiety/depression and also a personality disorder with an incapacity to the extent of 50%, but that he was suitable for labouring duties. He therefore was unable to obtain the Invalid Pension.

58. Thereafter, the applicant went to Surfers Paradise where he worked as a trainee chef in an Indian restaurant. The restauranteur provided him with accommodation, however, there was a disagreement which, according to the applicant, was due to racist attitudes displayed by the restauranteur because he was an Indian and the applicant was Nepalese. The applicant said that the restauranteur arranged for "thugs to bash (him) up" and retained all his papers including his passports. The applicant took legal action to retrieve them. The applicant ceased his employment as a trainee chef in April 1984.

59. In or about May 1984, the applicant met a man who ran a company called "Back Track Experiences" and who was endeavouring to extend his travel business to Nepal. He promised the applicant employment by taking people to Nepal. In the meantime the applicant assisted him with information for his brochures. The applicant also obtained accommodation with this man. The applicant described himself at that time as "feeling relaxed" for the first time (p 59 of transcript). This accommodation and employment ceased because, as the applicant said:

"... some member of the Federal Police and some member

of the ASIO and Australian Police Special Branch - I

think they were all together - and frightened him. He

was so petrified he said: You are not honest. I do

not know what your problem is. .... So I lose job."

(pp 58-59 of transcript)

60. The applicant was not remunerated for his work.

61. The applicant then found employment as a waiter in a Chinese restaurant called "Satay House" as well as with an associated restaurant, "Kuali House", owned by the same proprietor. He worked Monday to Friday during the day in Kuali House and on Wednesday and Friday evenings at Satay House. This employment ceased following what the applicant alleged was Police harassment of the proprietor who then terminated his employment.

62. On 4 September 1984, the applicant lodged the compensation claims the subject of this review.

63. On 17 September 1984, the applicant was admitted to Rosemont Psychiatric Hospital in Queensland. At that time, he was complaining of confusion of thought and difficulty in concentration as well as auditory hallucinations at times of acute depression. The staff psychiatrist, Dr New, was of the opinion that the applicant had "atypical adjustment disorder" and that no follow-up treatment was required (T22/48). The applicant was also seen by Dr Murphy on 1 October 1984 to whom the applicant reported similar symptoms and to whom the applicant gave a long description of incidents describing disadvantage or discrimination. Dr Murphy was of the opinion that the applicant had "a personality disorder or the paranoid type involving people he associates with (for) any length of time". It was also noted that when the applicant was "more distressed" he is "psychotic" and that in Dr Murphy's view, the applicant was not fit to work at that time.

64. After release from hospital the applicant stayed temporarily with the man operating "Back Track Experiences". However, he gave evidence that at that time there was still an outstanding charge for false pretences and the trip which he was planning to make to Nepal with "Back Track Experiences" did not eventuate, and the applicant returned to Adelaide in October 1984.

65. On 24 October 1984 divorce proceedings between the applicant and his wife were heard on his wife's application and a decree nisi order was made.

66. In January 1985, the applicant decided to travel to Darwin because he could not obtain a job in Adelaide and, as he said, he:

"...found some drifters. By that time I call myself

being a desperate drifter and any moment any new place

that could be tried, well I will take the same risk

and opportunity. So I again went like exactly I went

to Queensland on the way to Darwin."

(transcript, pp 61-62)

On 9 January 1985, the applicant was travelling to Darwin with other people and was driving a motor vehicle which overturned and all occupants received injuries. The applicant received an injury to the right side of his jaw and was suffering from shock. The other occupants received more serious injuries.

67. The applicant took an action for damages as a result of the injuries he received in the car accident, which action was unsuccessful. The applicant gave two reasons for the car overturning; the first was a problem with the steering wheel and the second was the loading of the car. It was not until later in his evidence that the applicant informed the Tribunal that the car had been specially modified to enable drugs to be hidden (transcript, p 168). The applicant said he was not involved in that smuggling.

68. Following the car accident, the applicant received Sickness Benefits and was given certificates of incapacity from Dr Ebert (T23/49, 50, 51). The applicant alleged that apart from local pain in the jaw, he also began to grind his teeth following that accident. This evidence was contradicted by his wife who gave evidence that he used to grind his teeth from time to time during their marriage. We accept her evidence in preference to that given by the applicant.

69. In February 1985, the applicant obtained work through the Commonwealth Rehabilitation Service and began to learn Japanese language at a College of Technical and Further Education as well as learning Japanese cooking by working in a Japanese restaurant. He was paid $25.00 per week and worked in the restaurant on Fridays from afternoon until late at night. He sometimes worked two or three additional nights per week at the restaurant depending on how he felt and what mood he was in (p 170 of transcript). No matter how many nights a week he worked at the restaurant, the applicant said he only received $25.00 per week. We have difficulty accepting this evidence but we are prepared to give the applicant the benefit of the doubt. The applicant ceased work in that restaurant in mid April 1985 because, in his words:

"...when I told him that I had a claim with the

Department of Defence .... he become frightened and he

said, 'I do not want to know you', and he would not

just tell me when he was going to give me full-time

job. So if that was the situation, well I guess I

have to go and get a job somewhere else, so I just

decided to not go there any more and notify the

relevant department that I was not interested there

any more, and dropped out from learning Japanese and

so forth."

(transcript, p 170)

70. On 15 April 1985 the applicant saw Dr Jagermann (T28/66) who noted the applicant's involvement in tuition in Japanese style cooking (albeit it for less hours than the applicant disclosed to the Tribunal) in addition to his learning the Japanese language. Dr Jagermann noted that the applicant's stress and depression caused periodic reactivation of his Herpes problem which still troubled him about once per month at that time.

71. The applicant first saw Dr Kutlaca on 29 January 1985 upon reference from Dr Hoff who considered he was unable to treat the applicant in view of his position in the Army. The applicant thereafter saw Dr Kutlaca regularly for psychotherapy.

72. In May 1985 the applicant saw a job advertisement at the Commonwealth Employment Service in Adelaide for a cook at a station in the Northern Territory. The applicant travelled by bus to Darwin and on arrival, telephoned the station and obtained the position. He only worked for two weeks before his employment terminated. The circumstances of that termination are best left to his own words:

"I cooked and everybody was happy with me for the

food, but then I met some few ex-soldiers from the

Vietnam war and when they found out - I do not have a

habit of lying, and I said: I have a problem with the

Australian Army. They said: What is happening to

Australia, full of Asiatic people coming, why do we

have to put up with it here, even in Darwin? That

caused a lot of problems for me in the work because

they did not want to eat the food, and they were

starting to complain to management that I was not

doing my job properly. My unstable habit - something

happens - just lose interest and move on."

(p 65 of transcript)

73. Upon termination of his employment, the applicant returned to Darwin and started looking for work. It was the wet season and the tourism business was closing down. The applicant had little money remaining and returned to Adelaide in about September 1985, whereupon he took up residence in a Hare Krishna monastery.

74. On 9 October 1985 a determination of workers' compensation was made in the applicant's favour and he became entitled to a lump sum payment of compensation up to 11 April 1985. At about this time, the applicant went to reside with a businessman, Mr Roka, who ran a travel agency business, "Yeti Travels". The arrangement with Mr Roka was that the applicant would invest his compensation payment moneys in Mr Roka's business and in return he would be employed by Mr Roka to run adventure treks in Nepal.

75. In the meantime, in late 1985 the applicant obtained work as a chef and waiter in a late night piano bar working five nights per week.

76. On 13 January 1986 the applicant received his lump sum compensation for the period 25 December 1982 until 31 December 1984. The applicant gave evidence that during this period of employment with the piano bar he felt tired, was lacking in sleep and had low appetite. He also said he "started being little bit alcoholic" (p 69 of transcript).

77. The applicant ceased work at the piano bar in January 1986 as:

"....I found the joint was run by some drug addicts

and prostitutes and things like that, and almost

getting bankrupt. I got this compensation thing. The

first thing I did was pay most of my outstanding

debts, and I had not seen my mother for almost three

years so I decided again for a change of scene, to go

back to Nepal. I departed with proper knowledge that

this private limited Piano Man was closing down."

(transcript, pp 66, 67)

78. On 16 January 1986 the applicant left to go to Nepal.

79. The applicant loaned Mr Roka a sum of $5,000 from his compensation money and he used $9,000 of his compensation money to pay old debts. He also paid moneys due to the Taxation Department. It was from failure to pay this debt that he had successfully avoided prosecution due to the intervention of the Commonwealth Ombudsman. The remainder of his compensation money was used to travel to Nepal and to make duty-free purchases which were later the subject of customs duty prosecutions due to alleged misconduct of Mr Roka. There is no need for this Tribunal to unravel that history.

80. Whilst in Nepal, the applicant stayed with his mother. It appears to have been an unhappy return because he was under pressure to explain why he had not brought his daughter. (The applicant had not and has still not seen his daughter since a short time after he and his wife separated). The applicant sought medical treatment largely for problems related to his Herpes condition and it was recommended by "the panel of the family doctors ... that probably (he) should return back to Australia and go to psychotherapy and try to build a life".

81. The applicant applied for special permission to leave Nepal with more money than the Nepalese government would normally allow to be released from that country. This was granted to him.

82. On his return to Australia, the applicant returned to live at Mr Roka's house and again sought treatment from Dr Kutlaca who suggested that he should join the "Willows programme" at the Glenside Hospital. As to this programme, the applicant gave evidence at p 70 of the transcript:

"I joined, yes, I did; but I could not stay there for

longer than 24 hours because I have never seen such

people on such a programme, because most of the

inpatients over there were child molesters, bank

robbers and suicidal maniacs, and I could not possibly

fit in that category. And the social worker became

very, very provocative towards me and he made me very,

very angry, and his decision was that I did not - he

said I did not show any consideration for other

inpatients there. I said to the social worker ...

sir, I am a Hindu. I feel very, very sorry for these

people. I know they have suffered psychological

trauma in their life not of their own making, but in

no way would I, as a father, be near a child molester

because I have a daughter - and a couple of those

people were child molesters there so, therefore, due

to my conviction, I volunteered to withdraw from that

programme within 24 hours."

83. On 5 June 1985, Dr Kutlaca provided a report in which he stated that, in his opinion, the employment by the applicant with the Australian Army had probably contributed to him developing an "adjustment disorder with mixed emotional features". Dr Kutlaca expressed the view that as of the last time he saw the applicant, namely on 11 April 1985, the applicant at that time had significantly recovered from such aggravated adjustment disorder as a result of his employment in the Army (T29/71-84).

84. On 15 June 1986, the applicant obtained work as a waiter in an Indian restaurant for a period of one month, during which time he worked as a part-time kitchen-hand and waiter on the promise that he would later be given full-time employment as a chef. However, he was given the work of skinning 50 kilos of chickens twice each week. As a result of this work, he suffered repetitive tendonitis. He obtained a medical report in support of his condition which he gave to the owner and he was then dismissed on 15 July 1986. The applicant took out action in the South Australian Industrial Court for wrongful dismissal. He failed to be re-employed but he was paid $1,100 in settlement of the action. He also took out a compensation claim for the tendonitis in the South Australian Industrial Court and received $1,000 compensation.

85. Following cessation of his employment at the Indian restaurant, he was in receipt of Sickness Benefits from July 1986 until January 1987.

86. In July 1986, after a personal and financial disagreement, the applicant shifted from Mr Roka's house to live in a boarding-house.

87. During late 1986 the applicant was involved in a number of court actions involving Mr Roka. They related to an attempt to recover $5,000 and interest and peace complaints in which the applicant was ordered not to communicate with Mr Roka. This order was later revoked by default of appearance by Mr Roka. Allegations were also made by the applicant that Mr Roka was harassing the owner of the rooms in which the applicant had lodgings; there were also counter-allegations by Mr Roka that any threats being made to the owner of the boarding-house were being made by the applicant who pretended to be Mr Roka. It is impossible as well as unnecessary in these proceedings to resolve those conflicts, but merely to indicate the continuous level of tension under which the applicant was living.

88. In April 1987, the applicant obtained employment at a Thai restaurant with a sympathetic employer. He was able to work as a kitchen-hand or waiter on two to three evenings per week depending on how he felt. The owner of the restaurant was benevolent and allowed the applicant to take time off from work if he was feeling unwell. His usual working days were Friday, Saturday and Sunday evenings for three hours each day. During his employment with the Thai restaurant, he still suffered from symptoms of stress which meant that he was unable to work regularly.

89. On 9 October 1987 the applicant was involved in a second motor vehicle accident when again he was the driver and his then girlfriend was a passenger. There were no physical injuries which the applicant received in that motor vehicle accident but it caused an aggravation of his stress condition. The accident also appeared to be the beginning of a demise of his new relationship with the girlfriend with whom he began living at about that time. Following the motor vehicle accident, he again received Sickness Benefits from 9 October 1987.

90. In November 1987, the applicant enrolled to study Science, Maths and English at a College of Technical and Further Education. He was still receiving Sickness Benefits.

91. On 14 December 1987, the hearing of this review commenced and was adjourned part-heard to February 1988.

92. On 1 January 1988 the applicant's Sickness Benefits ceased.

93. In February 1988 the applicant's case for access to his daughter was due to be heard in the Family Court but was adjourned. This review resumed hearing on 10 February 1988 and was completed on 12 February 1988.

94. During the adjournment period for this review, the applicant also commenced proceedings for unlawful dismissal against his former employer at the Thai restaurant. According to the applicant, the owner would not re-employ him after his second motor vehicle accident because of alleged visits by persons from the Federal Police in combination with the fact that the owner is a refugee.

95. As at the time of both review hearings, the applicant was not employed.

96. The applicant described his symptoms at the present time to include panic attacks from time to time when stressed, during which attacks he hyperventilates, as well as still suffering from feelings of withdrawal, depression and defensiveness. He considers that his condition was worsened by his most recent motor vehicle accident in October 1987. He alleged he still suffers problems following his first motor vehicle accident in January 1985 with symptoms related to his jaw, which include local tenderness, headaches and grinding of teeth.

97. Turning now to the medical evidence. The medical evidence adduced at the hearing in relation to the first claim of adjustment disorder consisted of evidence from Dr Kutlaca, Dr Hoff and Dr De Pasquale. Whilst there were certain differences of opinion between the three psychiatrists, all three were generally in agreement that the applicant may well have suffered from an aggravation of a psychiatric condition as a result of his Army service. There was a divergence of opinion as to the nature of the applicant's psychiatric condition and the period of incapacity arising from that aggravation.

98. Dr De Pasquale saw the applicant for the first time on 26 September 1986 and thereafter on two further occasions, 27 October 1986 and 20 November 1986. Dr De Pasquale did not consider that the applicant was suffering from a psychiatric personality disorder although he considered the applicant had a pre-existing personality problem which was aggravated as a result of events which occurred during his Army service. Dr De Pasquale also considered that another contributing factor to the aggravation was his marital difficulties. Dr De Pasquale, unlike the other two doctors, considered that the applicant was still suffering from the effects of that aggravation due to Army service up until the present time.

99. Dr Kutlaca, on the other hand, expressed the view that the applicant was suffering from an adjustment disorder with mixed emotional features and that this had occurred as a result of various stresses. Those stresses included his personal, cultural, racial, marital and financial problems as well as occupational stresses. Dr Kutlaca was of the very strong opinion that the applicant no longer suffered from any aggravation of that condition as from April 1985 and that any problems that he may have from that time until the present were due to other stresses in his life. The doctor also expressed the strong view that the applicant was manipulative in relation to his compensation claim, and further that he showed signs of being a "vexatious litigant".

100. Dr Hoff considered that the applicant was suffering from a reactive depression. Dr Hoff was the first of the three psychiatrists to see the applicant and he saw him very soon after the applicant's wife had left him. The applicant expressed the view that he was reluctant to talk with Dr Hoff who was employed as an Army doctor, about his precise difficulties in the Army. Even so, Dr Hoff considered that the applicant may well have suffered from problems with Army life because of his cultural difference and in particular having regard to his type of personality.

101. Overall, the Tribunal prefers the evidence of Dr Kutlaca and Dr Hoff to that expressed by Dr De Pasquale where there is any conflict. We consider that Dr De Pasquale, having had only three recent consultations with the applicant, did not see him over a long enough period of time to make the best evaluation of the applicant's condition. This Tribunal has also had the benefit of seeing the applicant over a period of seven days conducting his own case, as well as having heard the evidence of Dr Kutlaca and Dr Hoff, both of whom treated the applicant over longer periods.

102. The Tribunal finds the applicant had a personality disorder prior to his coming to Australia. This disorder was not of high order but the stresses of coming to a new country, a marriage that was clearly deteriorating and alienating to both parties, his self-consciousness about his noble Nepalese background contrasting with the irreverent and sometimes racist Australian environment, would have laid a vulnerable foundation which was further aggravated by the conditions of his Army service previously described. These stresses were further magnified by the eventual breakdown of his marriage and his later inability to have access to his child. All of these stresses culminated in an aggravation of an adjustment disorder and reactive depression of which the Army service was but one component.

103. The Tribunal does not consider that the Army service caused the applicant's personality disorder or adjustment disorder, or reactive depression but finds that such adjustment disorder and reactive depression were aggravated by the conditions of his employment.

104. However, the Tribunal is not persuaded that since April 1985, the applicant has continued to suffer from an aggravation of an adjustment disorder or reactive depression due to his Army service. Certainly the applicant's employment with the Army was a contributing factor to the aggravation of this disorder within the meaning of s.29 of the Act. But in accepting the medical evidence of Dr Kutlaca and Dr Hoff, the Tribunal finds any continuance symptomatic of a disorder to be probably the result of other life stress factors currently operating and not those relating to the applicant's period of Army service.

105. In fact, the applicant himself, in conducting his own case, indicated he was still very concerned and stressed over his failure to obtain access to his child (over a period of six years) as well as the effect the breakup of his marriage had upon him. That these familial problems were causing him greater aggravation was further evidenced by the applicant confining his closing address to problems pertaining to access to his child and hardly touching on matters relevant to his compensation claim.

106. The chronology of events after the applicant's discharge from the Army as described above, which includes two motor vehicle accidents, a series of personal confrontations with associates and failure to gain access to his daughter, are the probable contributing factors to the applicant's psychiatric condition since April 1985 to the present time.

107. Further, pursuant to ss.25 and 26 of the Act, for an injury (in this case the aggravation) to be compensable, the applicant must suffer a loss of earning capacity as a result of the injury. The Tribunal is not of the view that the applicant has been incapacitated for work as a result of the aggravation even if it were found that the aggravation of his adjustment disorder continued after April 1985. The applicant has been capable of performing work at various times since April 1985, albeit sporadically and with some personal difficulty. But the Tribunal notes that even prior to his Army employment, the applicant had not been able to sustain other than temporary casual employment, and we can only suspect that this may well have been his pattern of employment whether or not he had been employed in the Army.

108. The Tribunal also concurs with Dr Kutlaca's observation that the applicant displays signs of manipulation and he is litigation conscious.

109. In respect of the second claim, "loss of normal sexual life", this Tribunal is not of the view that the applicant's contraction of Herpes Simplex II arose out of or in the course of his employment with the Australian Army. Whilst Herpes Simplex II would be a "disease" in common terminology, it would not be a compensable disease within the meaning of s.29 of the Act as we are not satisfied that the applicant's conditions of employment including any harassment which occurred during employment, were causally linked with his sexual encounter, let alone the contraction of Herpes in Bangkok. Nor is Herpes Simplex II a disease "deemed" to be contributed to by employment within the meaning of s.30, as sexually transmitted diseases are not of a kind specified under the Regulations as listed in Schedule 1.

110. In the further alternative, the applicant's claim of "loss of normal sex life" may be considered in terms of an "injury" arising out of or in the course of his employment pursuant to sub-s.40(1) of the Act, which states:

"The compensation payable under this Act in respect of

an injury that results in the loss of the genitals or

the total and permanent loss of the capacity to engage

in sexual intercourse is $14,000 or such higher amount

as is prescribed and is payable to the employee."

(emphasis added)

111. The Tribunal concurs with the finding of the delegate of the Commissioner for Employees' Compensation (T34/92) that the applicant's abstinence from engaging in sexual intercourse is voluntary, albeit initiated by his fear of transmitting the condition to a partner, and that he does not have total and permanent loss of capacity to engage in sexual intercourse within the meaning of this section of the Act.

112. For these reasons, the Tribunal finds that the applicant must fail in his application for review of both determinations made by the delegate of the Commissioner for Employees' Compensation. The Tribunal not being satisfied that since April 1985 the applicant has been incapacitated for work as a result of the contraction and/or aggravation of an injury arising out of or in the course of his employment with the Army pursuant to s.29 of the Act, or that he has been totally or permanently incapacitated from engaging in normal sexual relations within the meaning of sub-s.40(1) of the Act, the determinations of the Commissioner are affirmed.