In Farnaby v Military Rehabilitation and Compensation Commission [2008] FCA 1911, Justice Heerey upheld an Administrative Appeals decision that liability to pay compensation did not exist in relation to a claim for post traumatic stress disorder (PTSD). Even though the Court ultimately held that the bases of the appeal were not proven and were not questions of law, the merits of the claim were fully canvassed in fairness to the appellant.

Evidence Regarding Service

Mr Farnaby enlisted in the Royal Australian Navy in 1968, aged 15. He made a claim for PTSD in 2002 on the basis that he had suffered physical and sexual abuse during his service. Mr Farnaby gave evidence that he was often punched, bludgeoned with pillow cases filled with heavy equipment, stripped and generally badly treated by more senior recruits. Mr Farnaby was also allegedly sexually assaulted by a 'sponsor' whom he stayed with on weekends, as arranged by the Navy. Mr Farnaby resigned from the Navy in 1979. He claimed that he did not report the incidents at the time for fear of reprisal, and was humiliated and embarrassed to speak of the events until shortly after he spoke to a counselling service in 2002.

Medical Evidence And Non-Service Facts

Medical evidence was provided by three psychiatrists, one of whom diagnosed PTSD which was attributed to Mr Farnaby's Navy service.

Mr Farnaby's symptoms were noted to have arisen in 1981. He was told in 1980 that his mother had died. He then rang his sister who told him that his father committed suicide on the same day.

The Tribunal ultimately preferred the evidence of the psychiatrist who gave evidence that Mr Farnaby's condition was associated with the deaths of his parents.

The Tribunal's Decision

The Tribunal accepted that Mr Farnaby was subjected to 'bastardisation' (sic) in the Navy and sexual abuse by his sponsor. Nevertheless, the Tribunal was not satisfied that he suffered a mental injury. They also found that his symptoms arose after his parents' deaths, and it was associated with his difficult personality and substance abuse.

The Appeal

The appeal was made on two bases:

  • the Tribunal only considered the Mr Farnaby's symptoms as at the time of the hearing in 2008 and not as at the time of his claim in 2002; and
  • the Tribunal incorrectly searched for the cause of the condition rather than considering whether Mr Farnaby's military employment was a cause of the condition.

The Court's Decision

Justice Heerey reiterated the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, that such decisions should not be scrutinised over-zealously to seek inadequacies. His Honour found it was an unreasonable reading of the Tribunal decision to say it only considered the symptoms at the time of hearing, and it was pointed out that the Tribunal clearly referred to Mr Farnaby having lodged his claim in 2002. It was noted that this point in time was important in the narrative of events, given that this was when Mr Farnaby first sought medical attention and that this point in time was important in the Tribunal's consideration of whether there was a 'reasonable cause' for Mr Farnaby's delay in making his claim.

Similarly Justice Heerey found that the decision, read as a whole, indicated that the Tribunal excluded that the events during service had a causal effect on Mr Farnaby's condition.

Justice Heerey went on to find that the grounds raised on the appeal were not questions of law, but raised questions of fact. His Honour stated there was no doubt that the relevant time to assess whether Mr Farnaby suffered a mental injury was at the time of lodging the claim, that it was sufficient if employment was a cause of an injury, and that the Tribunal decision did not suggest otherwise. His Honour explained that he nevertheless considered the merits of the case in fairness to Mr Farnaby. Justice Heerey stated that, given the factual finding that Mr Farnaby was vulnerable and badly treated, it was important to show that the finding that he did not suffer from a mental injury as a result was a proper decision made after a careful review of the evidence.

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