In Farnaby v Military Rehabilitation and Compensation
Commission  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
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
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 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
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
Phillips Fox has changed its name to DLA Phillips Fox
because the firm entered into an exclusive alliance with DLA Piper,
one of the largest legal services organisations in the world. We
will retain our offices in every major commercial centre in
Australia and New Zealand, with no operational change to your
relationship with the firm. DLA Phillips Fox can now take your
business one step further − by connecting you to a global
network of legal experience, talent and knowledge.
This publication is intended as a first point of reference
and should not be relied on as a substitute for professional
advice. Specialist legal advice should always be sought in relation
to any particular circumstances and no liability will be accepted
for any losses incurred by those relying solely on this
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).