CTHFCA

Schmid v Comcare

[2003] FCA 1057

Federal Court of Australia|2003-10-03|Before: Mason CJ, Weinberg J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2003-10-03

Before

Mason CJ, Weinberg J

Source

Original judgment source is linked above.

Judgment (23 paragraphs)

[1]

REASONS FOR JUDGMENT 1 This is an appeal, under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") from a decision of the Administrative Appeals Tribunal("the Tribunal") delivered on 3 May 2003. By that decision, the Tribunal affirmed two decisions of Comcare dated 27 July 1999 (the "first decision"), and 6 March 2001 (the "second decision"), respectively. 2 The first decision was that there was no liability for compensation under ss 24 or 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act") for the claimed conditions of chronic bipolar disorder, hiatus hernia, reflux oesophagitis, and low grade duodenitis, bowel or bladder. 3 The second decision revoked an earlier decision that there was liability for compensation for the claimed condition of depressive illness which had been made some years earlier. Comcare had initially accepted liability for that condition, though it was later redefined as "chronic bipolar illness". 4 Section 44(1) of the AAT Act provides: "A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding." 5 Although described as an "appeal", the proceeding before this Court is brought in its original jurisdiction. Accordingly, all references to the party bringing the appeal are to "the applicant".

[2]

Factual Background 6 The applicant, David Schmid, was born in 1963. He enlisted in the army in 1980, and completed his initial training at Kapuka. He then transferred to Singleton to complete basic infantry training. He subsequently joined the 3RAR unit at Woodside, South Australia for eight months during which time he was assigned to the Pipes and Drums Band. In 1982, the Battalion moved to Holsworthy, New South Wales. Later that same year, he was transferred to the Second Fourth Battalion in Townsville. He served three months at Butterworth in Malaysia in late 1984 and early 1985, and a further two weeks in Papua New Guinea in 1985. He was finally discharged from the Army with the rank of Private in November 1986. After discharge, he joined the Army Reserve in 1987, again being assigned to the Pipes and Drums unit. He resigned from the Reserve in May 1989. 7 After being discharged from the Army, the applicant was employed for some three years as a trade assistant at an automotive gas installer. He claimed that he had difficulty with lifting because of his hernia, and was advised to leave. He then worked as a detailer in a car rental business, but was terminated after four months. He was involved in marketing and promotion for a vineyard and winery, but had a serious car accident in February 1992, and was made redundant shortly after returning to work. He was then unemployed until 1995 when he worked for some months as a labourer in a nursery. He said that he felt intimidated by his employer, and had physical difficulties with the work. Thereafter, he engaged in casual fruit picking for about two years, and also worked part-time as a cleaner. Effectively, he had stopped working in 1996, and claimed that he could not now undertake employment even if it were offered to him. 8 The applicant claimed that there was a long tradition of army service in his family, and that he had joined the army with high expectations and a desire to serve his country. He claimed that he had been unable to continue because he had been victimised, and traumatised, by a series of incidents which had occurred during his term of service. He catalogued those incidents. They included: · In approximately week six of his time at Kapuka, he went into the shower area. He discovered the body of another recruit, who had hanged himself. He claimed that there was no "follow up, investigation or enquiries" made of him as to what had happened, and what he had seen. He said that he found this to be a very distressing incident, and that he was disturbed by the fact that the army did not seem to have taken the matter seriously. · Whilst still at Kapuka, he had gone on a training run. Another recruit collapsed, and was unable to continue. He was ordered to carry that recruit and complete the exercise, which involved a run of further 8-10 kilometres. He saw this as a form of "collective punishment" or a "desire on the part of the Army to force people out". · Whilst at Singleton he had been ordered to participate in a parachute exercise. This required him to land in a lake. He claimed that he was given only twenty minutes' training regarding how to roll in the event that he missed the water. He described the exercise as a disaster, and claimed that about half the recruits had suffered injuries. He landed in water and almost drowned. At the time, he believed that he was going to die. · After being transferred to Woodside, a friend and fellow recruit shot and killed himself in an accommodation hut. The applicant had been on guard at the time, and was ordered to go to the hut. He saw the body of the deceased, and the extensive wounds that he had inflicted upon himself. He saw blood on the doorstep, and around the room. He described it as a "gruesome sight", particularly as he had been talking to the deceased earlier that day. He described the incident as "most disturbing" and was upset by the fact that no one seemed to care about it. He recalled being told by a Sergeant that the deceased had been "unable to handle it", and that he had been a "wimp". The Sergeant had also said that the army was better off without him. · While at Holsworthy, he had been required to devote a considerable amount of time to practising with the Pipes and Drums section, as well as performing his normal duties as a member of the infantry. · In about August 1982, it was alleged that he had been smoking marijuana on the base. The matter was investigated, but no charges were laid. He believed that this was the reason he was transferred to Townsville. From the time he arrived in Townsville, the Regimental Sergeant Major repeatedly questioned him as to who was using drugs on the base, and threatened him with gaol if he did not provide that information. He said that from that time onwards, he was subjected to repeated questioning, threats and a campaign of hostility because of the allegations regarding his involvement in drug use. · After he was posted to Townsville, he was put under the command of a Pipe Major by the name of Gall. That officer was aware of the allegations involving drugs, and made many derogatory comments concerning the applicant. Other soldiers had also taunted him with the allegation that he was a drug user. · Pipe Major Gall had referred to him as "the German Gordy". The applicant took this to mean that he was an idiot. The Pipe Major repeatedly dressed him down in front of the platoon, and threatened on occasion to assault him. · In about June 1983, he had been assaulted by some civilians in a hotel after having become drunk, and insulting one of them. · In about January 1985, while in Malaysia, he had been assigned guard duty at the air force base. At one point, in the early hours of the morning, he was called to attend a particular check point. He saw a person crossing the volleyball court which was poorly lit. He called out to that person to stop, but he kept moving. He called out again and the person turned to face him. He appeared to be carrying something in his hands. The applicant released the safety catch on his weapon, and was about to fire, but at the last moment desisted from doing so. Shortly after, Malaysian security officers beat the person up "quite badly". The applicant was extremely upset by this as he knew the man, who was an innocent civilian employed on the base. Moreover, the applicant lost the round that he had chambered just before the civilian surrendered. He was punished by being assigned fourteen days' extra duties. 9 The applicant claimed that his daily routine was littered with thoughts of the past and, in particular, his experiences in the army. He also claimed that the incidents had caused him physical and psychiatric illness. In particular, he claimed that the incidents had led to his having sustained hiatus hernia, reflux oesophagitis, and low grade duodenitis, bowel or bladder (the "physical condition"). He also claimed that they had led to his having sustained chronic bipolar disorder (the "psychiatric condition").

The Tribunal's decision 10 After having set out the various incidents upon which the applicant relied in support of his claim for compensation, the Tribunal summarised his testimony, and that of other witnesses who gave evidence. 11 The Tribunal noted that the applicant claimed that he had twice, unsuccessfully, requested a transfer from the Pipes and Drums unit. 12 The incidents which he had recounted were the subject of detailed cross-examination. The applicant did not resile from the account which he gave of those incidents, but he modified it in certain respects. 13 In relation to the suicide in the shower area, the applicant acknowledged, under cross-examination, that he had not been the first to arrive at the scene. He also acknowledged that he did not know for a fact that there had been no investigation, and was unaware that a full enquiry had been held the next day. He accepted that his primary concern had been that he personally had not been questioned. 14 The applicant acknowledged that he had been only one of several recruits required to assist the soldier who had collapsed on the training run, and accepted that it was possible that he had only been obliged to carry him for a distance of one to two hundred metres at a time. 15 In relation to the second suicide, the Tribunal noted that the applicant maintained that he had gone into the room but, under cross-examination, acknowledged that he may not have actually seen the deceased. 16 The Tribunal noted that the applicant acknowledged that he had smoked cannabis, and that he had been the subject of an investigation regarding that matter in 1982. He also accepted that he had grown cannabis, and that he had smoked it intermittently after that date. 17 In relation to the physical conditions of which the applicant complained, the Tribunal noted that he "blamed" their onset on the circumstances of his service with the army. He could not recall when he first sought treatment for his stomach problems, but said that from early 1985 he had been issued with Mylanta. He claimed that he used at least half a bottle a fortnight, and now used Gavascon each day. 18 The applicant claimed that playing bagpipes for extended periods had caused both his hiatus hernia and gastric condition. He said that after he had left the army he suffered heartburn and water brash, conditions which he believed were linked to his having contracted pneumonia in 1985. At that stage, he did not regard these conditions as linked in any way to his bagpipe playing. However, he subsequently noted that the more he played, the greater the problem, and that the symptoms eased when he stopped. 19 The Tribunal then summarised the evidence given by various medical experts. It is unnecessary to set out that evidence in detail. It is sufficient simply to note that the experts all agreed that the applicant suffered from chronic bipolar disorder, and that his condition was partly genetic. However, there was disagreement among them as to whether that condition required a stressful or traumatic event to trigger it, and also as to when the condition manifested itself. 20 After considering the evidence, the Tribunal concluded that neither the applicant's physical, nor his psychiatric condition, stemmed from or was contributed to by his army service. 21 In relation to the applicant's physical condition the Tribunal said: "28 … Dr Murphy was quite firm in his view that the hernia and gastric problems were constitutional and in no way related to playing bagpipes. We were impressed with the evidence of Dr Murphy and prefer his opinion to that of the other medical witnesses. The relationships of aspirin medication and/or bagpipe playing suggested by these witnesses was purely hypothetical and, particularly in relation to the effect of bagpipes, was put forward with no scientific or expert knowledge support. To the extent that aspirin may have contributed, the evidence of Mr Schmid was that large doses were taken after his motor vehicle accident in 1982. There was no evidence to support that the accident had any connection with his army service. On balance we are satisfied that the hiatus hernia and gastric problems are constitutional and, if there had been any aggravation of such conditions as a result of army service, such aggravation had no relationship with the playing of bagpipes and the effect of any such aggravation had ceased prior to ceasing service with the army. Whilst Mr Schmid may well have a permanent impairment from the conditions, such impairment has not resulted from a compensable injury. There was no evidence to support any relationship between Mr Schmid's service and any bowel or bladder problems." 22 In relation to the applicant's psychiatric condition, the Tribunal relevantly stated: "31. … The majority of psychiatrists who considered that stresses during army service may have triggered the onset of bipolar disorder did so on the basis of the history given by Mr Schmid and, generally, were those who saw him in more recent years. As those who attributed the condition to the stresses in army service accepted that it was necessary for such stresses to be real, rather than perceived for the connection to be made, it is necessary to consider the evidence of those alleged incidents. This is somewhat difficult in view of the time which has elapsed, the lack of witnesses with direct knowledge of many of the incidents and the real possibility that Mr Schmid, in seeking to find reasons for his condition, has, since 1989, allowed incidents to grow in importance in his mind. 32. Two of the incidents highlighted by Mr Schmid and Dr Rose were the suicides by other soldiers. There is no dispute that they occurred. However, we do not accept, in either case, that Mr Schmid found the bodies or was first on the scene. In the first instance, recalled by Mr Schmid in paragraph 5 of his statement, it seems clear that Mr Schmid was one of several soldiers in the shower area when the body was found. In the second instance of a soldier shooting himself, we accept that Mr Schmid was aware of it and may well have been in the vicinity of the building, perhaps on guard, but the inconsistencies of his evidence and the evidence of Mr Martin and Mr Seeley lead to the conclusion that he did not see the body. In both cases, Mr Schmid appeared to be more concerned about the perception of an uncaring attitude by the army and its failure to include him in any enquiry or investigations rather than the particular trauma of the death. 33. In relation to the alleged incident of almost shooting a civilian in Malaysia, the evidence was particularly confusing. We find it difficult to accept that, if such an incident happened that no more senior ranking soldier was aware of it. The only support for Mr Schmid's version was from a friend, Mr Dyson, who was unable to provide any other details apart from Mr Schmid's version. We are of the opinion that it is likely that Mr Dyson "refreshed" his memory of the event by discussion with Mr Schmid prior to the hearing. He said that he had not but Mr Schmid acknowledged an earlier discussion. As such, we place little reliance on the evidence of Mr Dyson. While it is accepted as possible that some incident involving a civilian may have happened when on guard duty we are unable to accept that it happened in the way stated by Mr Schmid or that it had any such traumatic effect. 34. We are of the view that the other incidents outlined by Mr Schmid involve a degree of exaggeration, albeit unconsciously. We do not accept as possible a parachute jump from an aeroplane with only 20 minutes of training. We accept that it was smoke not gas used in the training exercise in 1981. The alleged incident in 1983 in North Queensland appeared to be an incident between Mr Schmid and civilians at a hotel and unrelated to the army although it appears likely that fellow soldiers removed him from the scene. Mr Schmid has no real memory of the actual incident. The majority of complaints by Mr Schmid were of his treatment by Pipe Major Gall. Considering all the evidence, we accept that there may well have been clashes between the two men and considerable personality differences but do not accept that the actions of Pipe Major Gall went beyond reasonable disciplinary action in the setting of an army unit. It could be summed up that the bulk of Mr Schmid's complaints and alleged incidents were primarily complaints about the system and his perception of a lack of consideration of himself and others. It may well have arisen from his basic personality problems referred to by Captain Miller in 1983 as "trouble relating to others". We believe that the evidence of Mr Schmid's paranoia is also relevant to his criticisms and complaints. 35. After consideration of all of the evidence, we find that the onset of the condition of bipolar disorder was no earlier than 1989. We are satisfied that the condition is primarily constitutional and, to the extent that stressful events may trigger the disorder, we cannot be satisfied on the balance of probabilities that such stressful events were related to army service. Mr Schmid had other stresses in his life such as a failed marriage, the death of his father and constitutional physical problems which may have contributed. We consider it relevant that Mr Schmid was an acknowledged regular user of cannabis which was considered by several of the psychiatrists as productive of depression. On balance, we are not satisfied that there is a causal relationship between army service and the condition of bipolar disorder and are satisfied that the condition was not contributed to in a material degree by Mr Schmid's employment by the army." 23 The Tribunal then concluded that the decision revoking liability for depressive illness or chronic bipolar illness should be affirmed, and so too should the decision denying a claim for permanent impairment for the physical conditions.

Schmid v Comcare

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